THE COMPLETE
WORKS OF EDWARD LIVINGSTON
CRIMINAL JURISPRUDENCE;
CONSISTING OF
SYSTEMS OF PENAL LAW FOR THE STATE OF LOUISIANA
AND FOR THE UNITED STATES OF AMERICA;
w htb r #f trorttrp  greports to tte same.
TO WHICH  IS PREFIXED  AN  INTRODUCTION
BY
SALMON P. CHASE,
CHIEF JUSTICE OF THE UNITED STATES.
IN TWO VOLUMES.
VOL. I.
PUBLISHED BY THE NATIONAL PRISON ASSOCIATION OF
THE UNITED STATES OF AMERICA,
194, BROADWAY, NEW YORK.
1873.








TABLE OF CONTENTS.
VOLUME I.
PREFATORY NOTE......       iii
INTRODUCTION.....V...   to viii
ACT Or ASSEMBLY OF LOUISIANA, 10 FEBRUARY 1820...  1
RESOLUTION OF THE ASSEMBLY OF LOUISIANA, 21 MARCH 1822.  3
APPOINTMENT OF EDWARD LIVINGSTON....    4
PRELIMINARY REPORT ON THE PLAN OF A PENAL CODE...  7
INTRODUCTORY REPORT TO THE SYSTEM OF PENAL LAW.. 79
INTRODUCTORY REPORT TO THE CODE OF CRIMES AND PUNISHMENTS 187
INTRODUCTORT REPORT TO THE CODE OF PROCEDURE..  331
INTRODUCTORY REPORT TO THE CODE OF EVIDENCE.411
INTRODUCTORY REPORT TO THE CODE OF REFORM AND PRISON








PREFATORY NOTE.
THROUGH  funds, furnished for the purpose, the National
Prison Association of the United States is enabled to issue the
complete Works of the late EDWARD LIVINGSTON on Criminal
Law and Prison Discipline. The Association is happy in being
made the organ of giving to the country and the world a new
edition of the writings of an American Jurist and Philanthropist,
who has done so much to illustrate and advance his age, in one
of the highest and noblest departments of civilization. The
Honorable SALMON P. CHASE, Chief Justice of the United States,
has kindly prepared an Introduction to these volumes, in which
full justice is done to Mr. LIVINGSTON's genius and services.
The present moment is auspicious for the re-appearance of this
most valuable contribution to criminal and penitentiary science,
when the whole world is waking up, as never before, to the
importance of improved penal legislation, penal systems, and
penal treatment.  It cannot fail to add fresh force to this
impulse, and to hasten reforms too long delayed.
E. C. WINES,
Corresponding Secretary of the
National Prison Association of tAe United States.
OFFICE OF THE ASSOCIATION,
194, BROADWAY, NEW YORK,
December, 1872.








INTRODUCTION.
THE close of the last, and the beginning of the present,
century  witnessed  remarkable  developments of ideas  and
institutions.
The American Revolution was the first attempt in the history
of the world to embody, in a written constitution for a great
country, the fundamental principles of government, and to distribute its powers among the different departments.
The French Revolution followed. Passion and prejudice, and
the absence of a controlling religious sentiment, marred its work,
and prepared the absolute government in which the Nation sought
refuge from its own excesses. But the Revolution was born of
reform, and the spirit of reform did not cease to work in the
councils of the state, when popular government, perishing of
misrule and anarchy, gave way to the Consulate.
The French Code was the product of discussions begun amidst
civil throes, and brought to a close under the auspices of the
First Consul.
Never, except in one instance, had the law of a great State
been so completely re-organized. The Code of Justinian served as
the model and inspiration of the Code of Napoleon. The former
preserved the rules which the wisdom of past ages had sanctioned;
pruned what had become obsolete or incongruous; out of chaotic
confusion evoked system and order; and added the regulations
which experience had proved to be necessary, or prudent forethought recommended as useful. The latter followed the illustrious example.
The names of Trouchet, Cambaceres, Le Brun, and their fellowmembers of the Napoleonic Commission, will ever be connected in
honour and memory with those of Tribonian and his associates in
the Commission organized by Justinian.




Vi                    INTRODUCTION.
Both Codes have exerted wide and permanent influence upon
the condition of mankind. The Civil Law, embodied in the Code
of Justinian, has entered largely into the legislation of modern
Europe and America; while the Code of Napoleon survives the
First and the Second Empires as the law of France; has been
adopted, in the main, by several neighbouring States; and has
given an impulse to improvement and order in Jurisprudence
which cannot be measured.
The impulse was felt in America by Edward Livingston, a
learned lawyer, familiar with the theory and practice of Common
and Civil Law, and thoroughly versed in the general principles of
Jurisprudence; a statesman already eminent, and destined to be
much more eminent; he was singularly qualified for the task
which, in obedience to the Legislature of Louisiana, he undertook,
of preparing a system of Penal Law for the State of his adoption.
This system consists of a Code of Crimes and Punishments; a
Code of Procedure; a Code of Evidence; a Code of Reform and
Prison Discipline; and a Book of Definitions.
To each of the four Codes an elaborate Report was prefixed,
in which its principles, purposes, and provisions were fully expounded. Two elaborate preliminary Reports, one on the plan of
a Penal Code, and one on the system of Penal Law, preceded
these. The whole work required the continuous and indefatigable
labours of three years.
When completed, an untoward accident occurred which would
have paralyzed the efforts of a man less patient in labour, and less
firm of purpose. In one night the original draught, and the copy
carefully prepared for the printer, was destroyed by fire. The
next morning witnessed the resumption of his toils, and in two
years the work was again complete.
It did not receive the sanction of the Legislature necessary to
make it the law of the State. It was not to be the good fortune
of Louisiana to possess a Penal Code so far in advance of any
-system hitherto promulgated. Objections of detail and fears of
possible consequences, combined with sluggish indifference, and
the inert force always so difficult to be overcome in deliberative
assemblies, to prevent the adoption of the comprehensive system,
planned with a genius only equalled by the indefatigable labour
with which the outlines were filled and completed. The Legislature proved unequal to the adoption of the Code of Livingston,




INTRODUCTION.                    Vii
It might have been otherwise had its author remained in
Louisiana, and devoted his great personal influence to the
work of securing the necessary sanction.
But the labour of preparing the Codeshad been chiefly performed
elsewhere, and in connection with the discharge of other public
duties; and the Legislature, though failing to adopt his system,
manifested its appreciation of its author by electing him soon
after as Senator of the United States, from which position he
was transferred to the Cabinet of Jackson, and then made
Minister to France. He never returned to Louisiana.
But though the State for which the Codes were prepared
neglected to avail itself of the labours assigned and solicited by
itself, they have proved, together with their Introductions, a treasure of suggestions to which many States are indebted for useful
legislation; and one in particular, the Republic of Guatemala, for
certain portions adopted into her own laws.
And the most advanced thinkers of the age, among whom
must be mentioned the illustrious names of Bentham and Jefferson,
made haste to acknowledge its merits, and to "arrange," to use the
words of Jefferson, the name of its author with those of the' Sages of Antiquity."
It should be mentioned here that soon after the completion of
the Codes for Louisiana, Livingston, then a representative in Congress from that State, prepared and presented to the House a
system of Penal Law, adapted to the use of the General Government, and embracing a title on " Offences against the Laws of
Nations."  This was printed by order of the House in 1828, but
was followed by no legislation.
A complete edition of the Codes and Introductory Reports was
printed at Philadelphia in 1833. The most important portions
had been previously printed in England, France, and Germany.
The whole is now nearly out of print. But the interest in the
subject lives, and will live, as long as the Punishment of Crime
and the Reformation of Criminals continue to engage the attention
of legislators and philanthropists.
It is not surprising, then, that the work of Mr. Livingston should attract again the public attention.  An edition,
consisting of the Introductory Reports and the title on
Offences against the Laws of Nations, from the system prepared for the United States, was begun in Paris just before




Viii                  INTRODUCTION.
the breaking out of the recent Franco-German war, and will
speedily appear.
And it seems not unfit, in view of the approaching international Congress on the Prevention and Repression of Crime,
including Penal and Reformatory Treatment, that an American
edition of the whole work, treating with such remarkable ability
the leading topics which must engage its attention, should be
brought out under the auspices of the American Prison Association. Funds for the purpose have been generously furnished to
the Association; and it rejoices in the opportunity thus afforded
of reviving in the memories of philanthropists and statesmen the
lessons of wisdom and humanity which it contains.
The American edition will thus meet the French edition of the
work of the great American Jurist, who was chosen on account of
it an Associate of the French Academy of Moral and Political
Science, nearly half a century ago. The fact will be certainly
remarkable. It will prove that, if Livingston was in advance of
his times, the day is at least approaching when his broad and comprehensive views will be not only appreciated but realized.
The American Prison Association, counting as its chief objects
the reform of Criminal Codes, the improvement of prison discipline, and the study and application of the best means of saving
discharged prisoners from a return to crime, takes great satisfaction in reproducing a work in which all these topics are discussed
with a keenness of insight, a clearness of statement, a force of
logic, a beauty of diction, an elevation of sentiment, and a breadth
of sympathy, which mark at once the highest genius and largest
benevolence.
WASITNGTON, May, 1872.




AN ACT
OF
THE GENERAL ASSEMBLY OF LOUISIANA,
RELATIVE TO
THE CRIMINAL LAWS OF THAT STATE.
APPROVED 10 FEBRUARY 1820,
WHEREAS it is of primary importance, in every well regulated state, that the code of criminal law should be
founded on one principle, viz., the prevention of crime;
that all offences should be clearly and explicitly defined,
in language generally understood; that punishments
should be proportioned to offences; that the rules of
evidence should be ascertained as applicable to each
offence; that the mode of procedure should be simple,
and the duty of magistrates, executive officers and individuals assisting them, should be pointed out by law:
and whereas the system of criminal law, by which this
state is now governed, is defective in many, or all of the
points above enumerated, therefore:
Section 1. Be it enacted by the senate and house of
representatives of the state of Louisiana in general
assembly convened, that a person learned in the law,
shall be appointed by the senate and house of representatives at this session, whose duty it shall be to prepare and present to the next general assembly, for its
consideration, a code of criminal law in both the French
and English languages, designating all criminal offences
A




2
punishable by law; defining the same in clear and explicit
terms; designating the punishment to be inflicted on
each; laying down the rules of evidence on trials;
directing the whole mode of procedure, and pointing out
the duties of the judicial and executive officers in the
performance of their functions under it.
Section 2. And be it further enacted, that the person
so to be chosen, shall receive for his services such compensation as shall be determined by the general assembly,
at their next session, and that a sum of five hundred
dollars shall be paid to him, on a warrant of the governor
upon the state treasury, to enable him to procure such
information and documents relative to the operation of
the improvements in criminal jurisprudence, particularly
of the penitentiary system in the different states, as he
may deem useful to report to the general assembly in
considering the project of a code: he shall account to the
general assembly, in what manner the said five hundred
dollars has been disposed of.




RESOLUTIONS
OF
THE GENERAL ASSEMBLY OF LOUISIANA.
21 MARCH 1822.
RESOLVED by the senate and house of representatives in
general assembly convened, that the general assembly do
approve of the plan proposed by Edward Livingston,
Esq., in his report, made in pursuance of the act entitled
" an act relative to the criminal laws of this state," and
earnestly solicit Mr. Livingston to prosecute this work,
according to said report; that two thousand copies of the
same, together with the part of the projected code thereto
annexed, be printed in pamphlet form; one thousand of
which shall be printed in French and one thousand
in English, under the direction of the said Edward
Livingston, Esq., of which five copies be delivered to
each member of the present general assembly, fifty copies
to the governor, one copy to each of the judges of the
supreme court, the district judges, the judge of the
criminal court, the attorney-general and district attorneys,
the parish judges, two hundred copies to the said Edward
Livingston, Esq.; and that the balance shall be for the
use of the state, of which one half shall be deposited in
the hands of the secretary of the senate and clerk of the
house of representatives, and the other half in the office
of the secretary of the state.
And be it further resolved, that the governor be
requested, and it is hereby made his duty to contract for
the printing of said work, and to pay for the same out of
the contingent fund.
And be it further resolved, that a sum of one thousand




dollars be paid to Edward Livingston, Esq., on his
warrant, out of the treasury of the state, to be on account
of the compensation to him allowed, when his work shall
be completed.
A. BEAUVAIS,
Speaker of the House of Representatives.
J. POYDRAS,
President of the Senate.
Approved, March 21, 1822,
T. B. ROBERTSON,
Governor of the State of Louisiana.
THE GENERAL ASSEMBLY OF LOUISIANA.
13 FEBRUARY 1821.
WE, the undersigned, secretary of the senate and clerk
of the house of representatives of the state of Louisiana,
do hereby certify, that on the thirteenth of February in
the year of our Lord, one thousand eight hundred and
twenty-one, EDWARD LIVINGSTON, Esq., was elected and
appointed by the joint ballot of the general assembly of
said state, to draw and prepare a criminal code. In
testimony whereof, we have hereunto set our hands.
J. CHABAUD,
Secretary of the Senate.
CANONGE,
Clerk of the House of Representatives.
New-Orleans, March 28, 1822.




REPORT
MADE BY
EDWARD LIVINGSTON
TO
THE HONOURABLE THE SENATE AND HOUSE OF
REPRESENTATIVES OF THE STATE OF LOUISIANA
IN GENERAL ASSEMBLY CONVENED.








REPORT
MADE BY
EDWARD LIVINGSTON
TO
THE HONOUR-ABLE THE SENATE AND HOUSE OF REPRESENTATIVES OF THE STATE OF LOUISIANA IN GENERAL
ASSEMBLY CONVENED.
In pursuance of the Act entitled " An Act relative to the Criminal
Laws of that State."
HAVING been honoured by an appointment at the last
session, to perform the duties required by "an act
relative to the criminal laws of the state," I have thought
it necessary to report to the general assembly the
progress that has been made in the work, and the
reasons which have prevented its completion. In
undertaking those duties, I relied much on the- aid
which I expected to derive from the other states; for,
although none of them has framed a code on so comprehensive a plan as that contemplated by our law, yet most
of them have established the penitentiary system, which
is intended to form the basis of our legislation on this
subject. Before I could avail myself of the advantage
which those experiments afforded, it was necessary to
know, with precision, their results. This information
could only be obtained by collecting the returns and
official reports of the different establishments, and inducing men of eminence and abilities to communicate their
observations on the subject. Knowing also the advantage to be derived from a comparison of the opinions of
eminent jurists and statesmen on other leading principles,




8                   REPORT ON
which must be embodied in the system, I addressed
several copies of the annexed circular letter to the
governors of each state, with the request, that they might
be put into the hands of men, from whom the desired
information might be expected; these, as well as a number of similar applications, I did hope, would have procured a body of information useful not only to.me in
framing the work, but to the legislature in judging of it.
This hope has, however, as yet been but partially
realized. I have received returns of the state of the
penitentiary only from Massachusetts. GovernorWollcott
and Judge Swift, of Connecticut, Chancellor Kent, of New
York, Judge Holman, of Ohio, Mr. Rawle, of Pennsylvania, Mr. Bowen, of Rhlode Island, Mr. Brice, of
Maryland, and Colonel Johnson, of Kentucky, have communicated to me some useful information; with these
exceptions, the gentlemen to whom my letters were
addressed, have been too much occupied in their own
states to attend to the affairs of ours.
Our minister in England has had the goodness to send
to me the reports of the committees of the house of commons, appointed to inquire into the propriety of a revision
of their penal laws; documents of great utility, to show
the operation of the law we have partially adopted, in
that country from which we have borrowed it.
It appears that these reports are not easily procured,
and that Mr. Rush was indebted for them to Mr. Jeremy
Bentham, whose writings have thrown so much light on
the subject of criminal legislation, and who, in a note
addressed to Mr. Rush, on our undertaking, has made a
suggestion which he will find has not been disregarded.
I certainly lost some time in waiting for answers to
my letters, but I cannot, in candour, state this (even with
the necessary attention to my professional business),
to have been the only cause why the task I have undertaken is not yet fully performed.
I never so far overrated my own powers, as to suppose
that the whole plan would be executed in the short
interval between the two sessions, but I did think, that




THE PLAN OF A PENAL CODE.            9
parts of it might be prepared, and submitted for the
sanction of the present legislature, leaving the others to
be acted upon at a future period. A closer view of the
subject, however, convinced me of my error. In establishing the principles on which the work was to be
framed, and tracing the plan of its different divisions, I
found that its parts were so closely connected, and that
continued references from one to the other were so unavoidable, as to render it difficult fairly to judge of, or
decide on, any part without examining the whole. I
therefore determined to report to the general assembly, the
progress I had made, to develope the plan on which I
proposed to execute the work, to give them some of the
detached parts as specimens of the execution, and then to
take their direction whether it should be completed or
not.
The introductory notice herewith submitted, gives the
different divisions of the code, into books, chapters and
sections; the whole is sub-divided into articles, numbered
progressively through each book, so that citations may be
made by referring to the article and book only. A continued numeration of the articles, through the whole
work, has been found, in other instances, inconvenient,
and carrying the numbers through each chapter or section
only, increases the difficulty of reference. In the same
notice, will be found some general provisions, made to
obviate the necessity of those repetitions, which increased
the barbarism of our legal language; but the omission of
which has sometimes counteracted the intent of the legislature. The instance of two statutes, which were made
in England, to punish, the one the stealing of horses, and
the other the stealing of a horse, is familiar to lawyers;
and indeed it has been doubted by some, whether a third
statute were not necessary, to include the female part of
the species.
One other article in this notice points to a method,
which will also, it is supposed, tend to render the code
both explicit and concise. Technical terms are never used
in the work, where common expressions could be found




10                   REPORT ON
to give the same idea. The employment of them, however, is, in many instances, unavoidable. In all such
cases, and whenever a word, or a phrase, is either ambiguous, or employed in any other sense than that which is
given to it in common parlance, it becomes necessary to
explain the precise meaning which is attached to it in the
code. To this end, whenever any such expressions occur
in the course of the work, they are to be printed in a
particular character, which will serve as a notice, that
they are defined and explained. These definitions and
explanations form the first book.
This, though necessarily the first in numerical order, it
is obvious, must be the last executed. The words requiring explanation are noted, and the definitions written,
as the work progresses; when complete, it will be submitted to men unversed in the language of the law, and
every word not fully understood by them, will be marked
for explanation. The foregoing parts of the plan are
believed to be new, and therefore require the stricter
attention to the propriety of their enactment: they suggested themselves to me, as the means of making the
work, at once concise, and easily comprehended by those
who are most interested in understanding it.
The second book begins with a preamble, which states
the reasons that called for the enactment of a criminal
code, and which sanctions, by a solemn legislative declaration, the principles on which its several provisions are
founded. These principles once studied, and after proper
discussion adopted, will serve as a standard to measure
the propriety of every other part of the code: with these
rules constantly before us, and duly impressed on our
minds, we can proceed with confidence and comparative
ease, to the task of penal legislation; and we may see at
a glance, or determine by a single thought, whether any
proposed provision is consonant to those maxims which we
have adopted as the dictates of truth. The incongruities
which have pervaded our system will disappear; every
new enactment will be impressed with the character of
the original body of laws; and our penal legislation will




THE PLAN OF A PENAL CODE.             11
no longer be a piece of fretwork exhibiting the passions
of its several authors, their fears, their caprices, or the
carelessness and inattention with which legislators in all
ages and in every country have, at times, endangered the
lives, the liberties, and fortunes of the people, by inconsistent provisions, cruel or disproportioned punishments,
and a legislation, weak and wavering, because guided by
no principle, or by one that was continually changing, and
therefore could seldom be right. This division of the
code is deemed to be of the highest importance; all the
other parts will derive their character from this; it is the
foundation of the whole work, and, if well laid, the superstructure raised in conformity to it cannot be essentially
faulty. It is the result of much reflection, guided by an
anxietyto discover tile truth, and to express it with precision.
The remainder of the second book is devoted to tle
establishment of general dispositions, applicable to the
exercise of legislative power in penal jurisprudence; to
prosecutions and trials; to a designation of the persons
who are amenable to the provisions of this code; to a
statement of the circumstances under which acts, that
would otherwise be offences, may be justified or excused;
to the repetition of offences; to the situation of different
persons participating in the same offence, as principals,
accomplices or accessories.
The enunciation of these general provisions, it is supposed, will greatly tend, not only to elucidate, but abridge
the work; by throwing them into a single chapter,
memory is assisted, order is better preserved, and repetition very much avoided. Among those which relate to
the exercise of legislative power, are some that ought
particularly to fix the attention of the general assembly;
such is one for the exclusion of that class of offences,
which figures in the English, and most other penal codes,
under the vague description of offences against the laws
of morality, of nature, and of religion. The will of the
legislature is established as the only rule; and the crude
and varying opinions of judges, as to the extent of this
uncertain code of good morals, are no longer to usurp the




12                   REPORT ON
authority of law. Connected with this, is the provision
which prohibits the punishment of any act not expressly
forbidden by the letter of the law, under the pretence that
it comes within its spirit.
By the criminal laws which now govern us, most
offences are described in the technical words of the
English jurisprudence, and we are referred to it for their
explanation; hence our judges have deemed themselves
bound to adopt those definitions which have been given
by the English courts, and the whole train of constructive
offences has been brought into our law. The institution
of the trial by jury, the rare infliction of torture; and in
latter times, the law of habeas corpus, gave a decided
superiority to the penal law of England over that of its
neighbours.  The nation, unfortunately, mistook this
superiority for perfection; and while they proudly looked
down on the rest of Europe, and reproached them with
their tortures, their inquisitions, and secret tribunals, they
shut their eyes to the imperfections of their own code.
Prisoners were denied the assistance of counsel; men
were executed because they could not read; those who
refused to answer, were condemned to die under the most
cruel torture.  Executions for some crimes were attended
with butchery that would disgust a savage. The life and
honour of the accused were made to depend on the uncertain issue of a judicial combat. A wretched sophistry
introduced the doctrine of corrupted blood. Heretics and
witches were committed to the flames. No proportion was
preserved between crimes and punishments. The cutting
of a twig, and the assassination of a parent; breaking a fishpond, and poisoning a whole family or murdering them
in their sleep, all incurred the same penalties; and two
hundred different actions, many not deserving the name
of offences, were punishable by death. This dreadful list
was increased by the legislation of the judges, who declared acts which were not criminal under the letter of
the law, to be punishable by virtue of its spirit. The
statute gave the text, and the tribunals wrote the commentary in letters of blood; and extended its penalties




THE PLAN OF A PENAL CODE.             i3
by the creation of constructive offences. The vague, and
sometimes unintelligible language, employed in the penal
statutes; and the discordant opinions of elementary
writers, gave a colour of necessity to this assumption of
power; and the English nation have submitted to the
legislation of its courts, and seen their fellow subjects
hanged for constructive felonies; quartered for constructive treasons; and roasted alive for constructive heresies,
with a patience that would be astonishing, even if their
written laws had sanctioned the butchery. The first constructive extension of a penal statute beyond its letter, is
an ex post facto law, as regards the offence to which it is
applied; and is an illegal assumption of legislative
power, so far as it establishes a rule for future decisions.
In our republic, where the different departments of
government are constitutionally forbidden to interfere with
each other's functions, the exercise of this power would
be particularly dangerous; it was therefore thought
proper to forbid it by an express prohibition. Some
actions, injurious to society, may, by this means, be permitted for a time, but it was deemed infinitely better
to submit to this temporary inconvenience, than to allow
the exercise of a power so much at war with the
principles of our government. It may be proper to
observe, that the fear of these consequences is not ideal,
and that the decisions of all tribunals, under the common
law, justify the belief, that without some legislative
restraint, our courts would not be more scrupulous than
those of other countries, in sanctioning this dangerous
abuse. In another part of the code, it is intended to
insert a provision, to bring before the legislature, at
stated periods, all those cases in which the operation of
the law is supposed to fall short of, or to extend beyond,
the intention of those who framed it; the defects, if
really such, will then be cured by the power legally
authorized to apply the remedy; the harmony of our
constitutional distribution of powers will be undisturbed;
and the ends of public justice attained with greater regularity and better effect.




1i4                  REPORT OSi
Our constitution, containing a very imperfect declaration of rights, leaves the legislative power entirely
uncontrolled in some points, where restraint has, in most
free governments, been deemed essential; a majority
may establish their religion as that of the state; nonconformity may be punished as heresy; and even the
toleration of other creeds may be refused; without
violating any express constitutional law. Corruption of
blood may be established, and it is even somewhat
doubtful, whether, strictly speaking, it does not, under
the general terms in which the rules of the common law
are adopted, now exist. No legislative act can apply an
effectual remedy to these and other constitutional
defects; but their existence has called for a longer
enunciation of general principles in the code, than would
otherwise have been necessary. Our successors will not
be bound to observe them, but we shall evince our own
conviction of their truth; and by impressing them on
the minds of our constituents, render any attempt to
undermine or destroy them, more difficult and more
odious.  Acknowledged truths in politics and jurisprudence, can never be too often repeated. When the
true principles of legislation are impressed on the minds
of the people; when they see the reasons of the laws by
which they are governed, they will obey them with
cheerfulness, if just, and know how to change them, if
oppressive. The reporter, therefore, has thought it an
essential part of his duty to fortify the precepts of the
projected code, by assigning the reasons on which they
are founded; thus. to open the arcana of penal legislation,
and to show that the mystery in which it has hitherto
been involved, was not inherent in the subject, but must
disappear, whenever its true principles are developed.
Among the general provisions, is also found one,
asserting the right to publish, without restraint, the
account of all proceedings in criminal courts, and freely
to discuss the conduct of judges, and other officers employed in administering justice. That this may be done
more effectually, it is provided that the judge shall, at




THE PLAN OF A PENAL CODE.           15
the request either of the accused or of the prosecutor,
state and record his decisions, with the reasons on which
they are founded. In a subsequent part of the work, it
will be made the duty of a particular officer to publish
accurate accounts of all trials, remarkable either for the
atrocity of the offence, or the importance of the principles
decided in the course of the proceeding. Publicity is an
object of such importance in free governments, that it not
only ought to be permitted, but must be secured by a
species of compulsion. The people must be forced to
know what their servants are doing, or they will, like
other masters, submit to imposition, rather than take the
trouble of inquiring into the state" of their affairs. INo
nation ever yet found any inconvenience from too close
an inspection into the conduct of its officers; but many
have been brought to ruin, and reduced to slavery, by
suffering gradual imposition and abuses, which were imperceptible, only because the means of publicity had not
been secured. In modern times, the press is so powerful
an engine to effect this, that the nation which neglects to
employ it, in promulgating the operations of every department in government, can neither know nor deserve
the blessings of freedom. The important task of spreading this kind of information, ought not, therefore, be left
to the chance of private exertion; it must be made a
public duty; every one employed in the administration
of justice will then act under the conviction, that his
official conduct and opinions will be discussed before a
tribunal in which lie neither presides nor officiates. The
effects of such a conviction may be easily imagined, and
we may fairly conclude, that in proportion to its strength,
will be the fidelity and diligence of those upon whom it
operates.
By our constitution the right of a trial by jury is
secured to the accused, but it is not exclusively established. This, however, may be done by law, and there
are so many strong reasons in its favour, that it has been
thought proper to insert in the code, a precise declaration, that in all criminal prosecutions, the trial by jury is




1 6                  REPORT ON
a privilege which cannot be renounced. Were it left
entirely at the option of the accused, a desire to propitiate
the favour of the judge, ignorance of his true interest, or
the confusion incident to his situation, might induce him
to waive the advantage of a trial by his country, and
thus, by degrees, accustom the people to a spectacle they
ought never to behold; a single man determining the
fact, applying the law, and disposing at his will, of the
life, liberty, and reputation of a citizen.
In proposing this change in our law, I may be permitted to make a few reflections, to show its importance.
The trial by jury formed no part of the jurisprudence of
the different powers which governed Louisiana prior to
its last cession.  It was first introduced  when the
province became incorporated with the United States, as
one of its territories. By the first act for effecting this
union, the trial by jury was established in capital cases;
and in all others, both civil and criminal, was left, as in
all cases it is now, optional with the parties. In the
second grade of government, it was provided, that the
people should have the benefit of the trial by jury, but it
was not declared the only mode of trial; and our state
constitution has adopted it in original cases, nearly in the
same words. This indifference in our constitutional compacts, to an institution of such vital importance, has had
the most injurious consequences, which have been increased by subsequent provisions. In civil cases, it is
already banished from our courts, or used only as an
engine of delay, or as an awkward and oppressive vehicle
for transmitting testimony, to be decided only by the
supreme court. This degradation of the functions of
jurors, in cases of property, certainly does not tend to
render them respectable in cases affecting life and liberty.
In criminal cases, the attorney-general, I believe, demands
a trial by jury, as he has a right to do, in all serious cases
even where the accused is willing to waive it. But a
prosecutor less friendly to the institution, and a judge
more desirous to increase his powers than the gentlemen
who now fill those stations, could easily find means to




THE PLAN OF A PENAL CODE.             17
make- the jury as useless, as rarely employed, and as
insignificant in a criminal court, as our laws have already
made it in civil jurisdiction.
Those who advocate the present disposition of our law,
say-admitting the trial by jury to be an advantage, the
law does enough when it gives the accused the option to
avail himself of its benefits; he is the best judge whether
it will be useful to him; and it would be unjust to direct
him in so important a choice. This argument is specious,
but not solid. There are reasons, and some have already
been stated, to show that this option, in many cases,
cannot be freely exercised. There is, moreover, another
interest, besides that of the culprit, to be considered; if
lhe be guilty, the state has an interest in his conviction;
and whether guilty or innocent, it has a higher interest,
that the fact should be fairly canvassed before judges
inaccessible to influence, and unbiassed by any false
views of official duty. It has an interest in the character
of its administration of justice, and a paramount duty to
perform, in rendering it free from suspicion. It is not
true, therefore, to say, that the laws do enough, when
they give the choice (even supposing it could be made
with deliberation) between a fair and impartial trial, and
one that is liable to the strongest objections.  They must
do more, they must restrict that choice, so as not to
suffer an ill-advised individual to degrade them  into
instruments of ruin, though it should be voluntarily
inflicted; or of death, though that death should be
suicide.
Another advantage of rendering this mode of trial
obligatory is, that it diffuses the most valuable information among every rank of citizens; it is a school, of
which every jury that is impanelled, is a separate class;
where the dictates of the laws, and the consequences of
disobedience to  them, are practically  taught.  The
frequent exercise of these important functions, moreover,
gives a sense of dignity and self-respect, not only
becoming the character of a free citizen, but which adds
to  his private  happiness.  Neither party spirit, nor




~18             -   REPORT ON
intrigue, nor power, can deprive him of this share in the
administration of justice, though they can humble the pride
of every other office, and vacate every other place. Every
time he is called to act in this capacity, he must feel that
though perhaps placed in the humblest station, he is yet
the guardian of the life, the liberty, and reputation of his
fellow citizens, against injustice and oppression; and that,
while his plain understanding has been found the best
refuge for innocence, his incorruptible integrity is
pronounced a sure pledge that guilt will not escape.
A state whose most obscure citizens are thus individually
elevated to perform those august functions; who are,
alternately, the defenders of the injured, the dread of
the guilty, the vigilant guardians of the constitution;
without whose consent no punishment can be inflicted,
no disgrace incurred; who can, by their voice, arrest the
blow of oppression, and direct the hand of justice where
to strike-such a state can never sink into slavery, or
easily submit to oppression; corrupt rulers may pervert
the constitution; ambitious demagogues may violate its
precepts; foreign influence may control its operations;
but while the people enjoy the trial by JURY, taken by
lot from among themselves, they cannot cease to be free.
The information it spreads; the sense of dignity and
independence it inspires; the courage it creates, will
always give them an energy of resistance, that can
grapple with encroachment; and a renovating spirit, that
will make arbitrary power despair.  The enemies of
freedom know this; they know how admirable a vehicle
it is to convey the contagion of those liberal principles,
which attack the vitals of their power, and they guard
against its introduction with more care than they would
take to avoid pestilential disease. In countries where it
already exists, they insidiously endeavour to innovate,
because they dare not openly destroy; changes inconsistent with the spirit of the institution are introduced,
under the plausible pretext of improvement; the common
class of citizens are too ill-informed to perform the duties
of jurors —a selection is necessary. This choice must be




THE PLAN OF A PENAL CODE.            19
confided to an agent of executive power, and must be
made among the most eminent for education, wealth and
respectability; so that, after several successive operations
of political chemistry, a shining result may be obtained,
freed, indeed, from all republican dross, but without any
of the intrinsic value that is found in the rugged, but
inflexible integrity and incorruptible worth of the original
composition. AMen, impanelled by this process, bear no
resemblance but in name to the sturdy, honest, unlettered
jurors, who derive no dignity but from the performance
of their duties; and the momentary exercise of whose
functions gives no time for the work of corruption, or the
effect of influence or fear. By innovations such as these,
the institution is so changed, as to leave nothing to
attach the affections, or awaken the interest of the people,
and it is neglected as an useless, or abandoned as a
mischievous contrivance.
In England, the panel is made up by an officer of the
crown; but there are many correctives which lessen the
effect of this vice. The return, except in very special
cases, is made, not with a view to any particular cause,
but for the trial of all that are at issue; and out of a
large number returned on the panel, the twelve taken for
the trial are designated by lot; in capital cases, also, the
extent to which challenges are allowed, is calculated to
defeat any improper practices; and when we add to this
the general veneration for this mode of trial, the force of
public opinion, guided by a spirit which it has created,
and diffused, and perpetuated, we shall see the reason
why the trial by jury, though by no means perfectly
organized, is, in that country, justly considered as the
best security for the liberties of the people; and why,
though they behold with a shameful indifference, a
domineering aristocracy, corrupting their legislative, and
encroaching On their executive branches of government,
they yet boast, with reason, of the independence of their
judiciary, ennobled as it is with the trial by jury. We
have received this invaluable inheritance from our
British  ancestors: let us defend, and improve, and




20                  IREPORT ON
perpetuate it; not only that we may ourselves enjoy
its advantages, but, that if this, with the principle of free
representation in government, and that admirable contrivance for securing personal liberty, the writ of habeas
corpus, should chance to be corrupted or abolished in the
country from whence we derived them, we may return
the obligation we have received, by offering for adoption,
to a regenerated state, those great institutions of freedom
established by ancestors common to them  and the race
of freemen, by whose labours, experience and valour, they
will have been perfected and preserved.
In France, this mode of trial was introduced during
the revolution, but was afterwards found inconvenient to
tile exercise of the imperial power. By the code of 1808,
it was so modified as to leave scarcely a resemblance of
its origin; it became a select corps of sixty men, chosen
by the prefect, who held his office at the will of the
crown. It was reduced by successive operations (all by
the king's officers) to twenty-one; out of which the
accused had the illusory privilege of excepting to nine;
and the votes of the majority of the remaining twelve,
combined, in no very intelligible manner, with the
opinions of the bench, decided his fate.  Yet even
under this vicious constitution, juries have sometimes
been found to interpose between executive power and
its victims; and the very name (for it is, in fact, but
very little more) of tile trial by jury, is now, under the
monarchy of France, the object of royal jealousy and
fear.
With these examples before us, ought we not, in
framing a new code, to impress on the minds of our
constituents a sacred attachment to this institution?So venerable for its antiquity! So wise in theory! So
efficient in practice! So simple in form! In substance
so well adapted to its end! The terror of guilt-the
best hope of innocence! Venerated by the friends of
freedom, detested and abhorred by its foes!  Can we
too religiously guard this sanctuary into which liberty:may retire in times (God long avert them  from our




THE PLAN OF A PENAL CODE.             21.
country!) when corruption may pervert, and faction
overturn, every other institution framed for its protection. Even in such times, the nation need not despair.
A regenerating spirit will never be extinct, while this
admirable contrivance for its preservation exists: fostered
in this retreat, it will gradually gather strength, and in
due time will walk abroad in its majesty over the land,
arrest the progress of arbitrary power, strike off the
shackles which it has imposed, and restore the blessings
of freedom to a people still conscious of their right to
enjoy them.
If these reflections should chance to be seen in the
other states, they will be considered as a trite repetition
of acknowledged truths: here, I have some reason to
apprehend they will be thought problematical assertions.
But whatever may be their effect, I should, with my
ideas of their importance, have been guilty of a dereliction of duty, had I failed to present them.  All, however, I think on the subject, more than any language at
my command can express, is contained in a single felicitous
sentence, written by a man as eminent for learning and
genius, as he is admired for the purity of his principles,
and his attachment to the institutions of freedom-speaking of jurors, he calls them"Twelve invisible judges, whom the eye of the corrupter cannot see, and the influence of the powerful
cannot reach, for they are nowhere to be found, until
the moment when, the balance of justice being placed
in their hands, they hear, weigh, determine, pronounce,
and immediately disappear, and are lost in the crowd of
their fellow-citizens." *
The other provisions of this book either require no
particular elucidation, or will receive it when the work is
presented for adoption.
It may, however, be proper to notice a change whici
is proposed in the law of principals and accessories. As
* Duponceau's address at the opening of the law academy at Philadelphia.




22                   REPORT ON
it now stands, two species of offenders are designated by
this general name,-distinguished by an awkward periphrase, into "accessories before the fact" and "accessories
after the fact." As there is scarcely any feature in
common between the offences designated by these two
denominations, I have taken away the general appellation, and called the first an accomplice, leaving the
description of accessory exclusively to the second. In
fact, how can the odious offence of plotting a crime, and
instigating another to perform that which the contriver
has not courage himself to execute; how can this be
assimilated to the act of relieving a repentant and supplicant offender, who invokes our pity, and relies on our
generosity? —an act, which, though justice may censure,
humanity cannot always condemn. The first class now
includes some acts which are so much identified with
those which constitute the offence, that it was thought
more simple, as well as more just, to arrange them under
the same head, and by destroying useless distinctions,
greatly restrict the number of crimes of complicity.
Under the second head; our law now calls for the
punishment of acts, which, if not strictly virtues, are
certainly too nearly allied to them to be designated as
crimes.  The ferocious legislation which first enacted
this law, demands (and sometimes under the penalty of
the most cruel death) the sacrifice of all the feelings of
nature, of all the sentiments of humanity; breaks the
ties of gratitude and honour; makes obedience to the
law to consist in a dereliction of every principle that
gives dignity to man, and leaves the unfortunate wretch,
who has himself been guilty of no offence, to decide
between a life of infamy and self-reproach, or a death of
dishonour. Dreadful as this picture is, the original is
found in the law of accessories after the fact.  If the
father commit treason, the son must abandon, or deliver
him  uuo to the executioner.  If the son be guilty of
a crime, the stern dictates of our law require, that his
parent. that the very mother who bore him, that his
sisters and brothers, the companions of his infancy,




THE PLAN OF A PENAL CODE.            23
should expel nature from their hearts, and humanity
from their feelings; that they should barbarously discover his retreat, or with inhuman apathy, abandon him
to his fate.  The husband is even required to betray his
wife, the mother of his children; every tie of nature or
affection is to be broken, and men are required to be
faithless, treacherous, unnatural and cruel, in order to
prove that they are good citizens, and worthy members
of society. This is one instance, and we shall see others,
of the danger of indiscreetly adopting, as a divine precept applicable to all nations, those rules which were laid
down for a particular people, in a remote and barbarous
age. The provisions now under consideration, evidently
have their origin in the Jewish law; that, however, went
somewhat further; it required the person connusant of a
crime committed by a relation, not only to perform the
part of informer, but executioner also. " If thy brother,
the son of thy mother; or thy son, or thy daughter, or
the wife of thy bosom, or thy friend, which is as thine
own soul, entice thee secretly, saying, let us go and serve
other gods, thou shalt not consent.... Neither shall
thine eye pity him.... neither shalt thou conceal
him;.... thou shalt surely kill him;.... thou
shalt stone him with stones." Almighty power might
counteract, for its own purposes, the feelings of humanity,
but a mortal legislator should not presume to do it; and
in modern times, such laws are too repugnant to our
feelings to be frequently executed; but that they may
never be enforced, they should be expunged from every
code which they disgrace. The project presented to you,
does this, with respect to ours. To put an end to that
strife, which such provisions create in the minds of jurors,
between their best feelings and their duty, their humanity
and their oath; no relation to the principal offender, in
the ascending or descending line, or in the collateral,
as far as the first degree: no person united to him by
marriage, or owing obedience to him as a servant, can be
punished as an accessory. Cases of other particular ties
of gratitude or friendship cannot be distinguished by law;




24.                  REPORT ON
they must be left for the consideration of the pardoning
power.
I proceed to the plan of the third book, the most important in the work: it enumerates, classes, and defines
all offences.
All contraventions of penal law are denominated by the
general term, offences. Some division was necessary to
distinguish between those of a greater and others of a less
degree of guilt. No scale could be found for this measure,
so proper as the injury done to society by any given act;
and as the punishment is intended to be proportioned to
the injury, the nature of the punishment was fixed on, as
the boundary between smaller offences, which are designated as misdemeanors, and those of a more serious nature
which are called crimes.  The last being such as are
punished by hard labour, seclusion, or privation of civil
rights, in addition to imprisonment. All other offences
are called misdemeanors. In the progress of the work, I
have felt some want of another denomination, to distinguish the lighter offences, which are punishable by
pecuniary fines only, from those which are called in the
English law by the vague appellation of high mnisdemeanors; and which are punished as well by bodily
restraint as by fine. It is possible that in the end, sometlling like the contravention of the French law may be
adopted: but I am at present inclined to think, that the
single division I have mentioned will be sufficient.
This first division can be of no utility in the definition
of offences, and therefore will find no place in that part of
the work; it is adopted, principally, from the necessity
of such a distinction in the general provisions, and will
also be found of use in [common parlance, and for the
purpose of reference.
Offences, including both crimes and misdemeanors, are
next classed, in relation to the object affected by them,
into public and private.
Here again the law which divides the two classes
must, in some measure, be arbitrary, for scarcely any
public offence can be committed that does not injure an




THE PLAN OF A PENAL CODE.             25
individual; and most of the outrages offered to individuals, in some sort, affect the public tranquillity: but the
order of the work requires the division, and it is made
with as close a view as could be given to the nature of
the different offences, as follows:
I. Under the head of public offences are ranked:
Those which affect the sovereignty of the state, in its
legislative, executive, or judiciary power.
The public tranquillity; the revenue of the state; the
right of suffrage; the public records; the current coin;
the commerce, manufactures, and trade of the country;
the freedom of the press; the public health; the public
property; the public roads, levees, bridges, navigable
waters, and other property held by the sovereign power,
for the common use of the people; those which prevent
or restrain the free exercise of religion, or which corrupt
the morals of the people.
II. Private offences are those which affect individuals
and injure them
In their reputation; their persons; their political
privileges; their civil rights; their profession or trade;
their property, or the means of acquiring or preserving
it.
Under one or other of these heads, it is believed that
all such acts or omissions can be arranged, as it may be
proper to constitute offences; unless, indeed, those which
relate to societies or corporate bodies may be found, when
they come to be defined, not properly assignable to any
one of these divisions; in which case, a separate class
will be created for them and other miscellaneous offences.
It is obvious, that the classification cannot be complete
until all the offences are enumerated and defined, and,
therefore, this sketch is submitted more to give a general
idea of the method, than as a complete plan.
Melancholy, misfortune and despair, sometimes urge
the unhappy to an act, which, by most criminal codes, is
considered as an offence of the deepest dye; and which,
being directed principally against the offender himself,
would have required a separate division, if it had been




s26          -      REPORT ON
admitted in this code. It has not; because its insertion
would be contrary to some of the fundamental principles
which have been laid down for framing it.
Suicide can never be punished but by making the
penalty (whether it be forfeiture or disgrace) fall exclusively upon the innocent.  The English mangle the
remains of the dead. The inanimate body feels neither
the ignominy nor pain.  The mind of the innocent
survivor alone is lacerated by this useless and savage
butchery, and the disgrace of the execution is felt
exclusively by him, although it ought to fall on the laws
which inflict it. The father, by a rash act of self-destruction, deprives his family of the support he ought to
afford them; and the law completes the work of ruin, by
harrowing up their feelings; covering them with disgrace; and depriving them by forfeiture of their means
of subsistence.
Vengeance, we have said, is unknown to our law; it
cannot, therefore, pursue the living offender, much less,
with impotent rage should it pounce, like a vulture, on
the body of the dead, to avenge a crime which the
offender can never repeat, and which certainly holds out
no lure for imitation: the innocent, we have assumed,
should never be involved in the punishment inflicted on
the guilty. But here, not only the innocent, but those
most injured by the crime, are exclusively the sufferers
by the punishment. We have established as a maxim, that
the sole end of punishment is to prevent the commission
of crimes; the only means of effecting this, in.the
present case, must be by the force of example; but what
punishment can be devised to deter him, whose very
crime consists in the infliction upon himself of the greatest
penalty your law can denounce? Unless, therefore, you
use the hold which natural affection gives you on his
feelings, and restrain him by the fear of the disgrace and
ruin with which you threaten his family, your law has
no effective sanction; but humanity forbids this; the
legislator that threatens it, is guilty of the most refined
tyranny. If he carries it into execution, he is a savage.




THE PLAN OF A PENAL CODE.            27
It is either a vain threat, and therefore cannot operate, or
if executed with an ill-directed rage, strikes the innocent
because the guilty is beyond its reach.
Another species of offence is also omitted, though it
figures in every code, from the Mosaic downward, to
those of our days, and generally with capital punishments
denounced against its commission; yet I have not polluted the pages of the law which I am preparing for you
by mentioning it; for several reasons:
First. Because, although it certainly prevailed among
most of the ancient nations, and is said to be frequently
committed in some of the modern, yet, I think, in all
these cases it may be traced to causes and institutions
peculiar to the people where it has been known, but
which cannot operate here; and that the repugnance,
disgust, and even horror, which the very idea inspires,
will be a sufficient security that it can never become a
prevalent one in our country.
Secondly. Because, as every crime must be defined,
the details of such a definition would inflict a lasting
wound on the morals of the people. Your criminal code
is no longer to be the study of a select few: it is not the
design of the framers that it should be exclusively the
study even of our own sex; and it is particularly desirable, that it should become a branch of early education
for our youth. The shock which such a chapter must give
to their pudicity, the familiarity their minds must acquire
with the most disgusting images, would, it is firmly
believed, be most injurious in its effects: and if there was
no other objection, ought to make us pause before we
submitted such details to public inspection.
Thirdly.  It is an  offence necessarily difficult of
proof, and must generally be established by the evidence
of those.who are sufficiently base and corrupt to have
participated in the offence.  Hence, persons shameless
and depraved enough to incur this disgrace, have made
it the engine of extortion against the innocent, by
threatening them with a denunciation for this crime, and
they were generally successful: because, against such an




258-                  RUEPORT ON
accusation, it was known that the infamy of the accuser
furnished no sure defence.
My last reason for the omission was, that as all our
criminal proceedings must be public, a single trial of this
nature would do more injury to the morals of the people
than the secret, and therefore always uncertain, commission of the offence. I was not a little influenced, also, by
reflecting on the probability that the innocent might
suffer, either by malicious combinations of perjured witnesses, in a case so difficult of defence, or by the ready
credit that would be given to circumstantial evidence,
where direct proof is not easily procured, and where,
from the nature of the crime, a prejudice is created by
the very accusation.
In designating the acts which should be declared
offences, I could not confine the selection to such as were
already prevalent in this country; this would have required, in future, too frequent a recurrence to the work
of amendment; nor could I, with propriety, include all
the long list of offences which have been enumerated in
the codes of other countries. A middle course has been
pursued, embracing such prohibitions only as apply
to acts which the present, and probably the future,
state of society, in our country, may require to be repressed.
The penal laws of most countries have an ample department allotted to offences against religion, because
most countries hare an established religion which must
be supported in its superiority by the penalties of temporal laws. Here, where no pre-eminence is acknowledged, but such as is acquired by persuasion and conviction of the truth; where all modes of faith, all forms
of worship, are equal in the eye of the law; and it is left
to. that of omniscience to discover which is the one most
pleasing in its sight; here, the task of legislation, on this
head, is simple, and easily performed.  It consists in a
few provisions for scrupulously preserving this equality,
and for punishing every species of disturbance to the
exercise of all religious rites, while they do not interfere




THE PLAN OF A PENAL CODE.           29
with public tranquillity: these are, accordingly, all that
will be found in the code.
After thus accounting for the omissions I have remarked, it may be proper to notice a new class, inserted
in the enumeration of public offences under the head of
offences against the freedom of the press: this is new in
the legislation of those governments where the liberty of
the press is best established and most prized. It has
generally been thought a sufficient protection to declare,
that no punishment should be inflicted on those who
legally exercise the right of publishing; but hitherto no
penalties have been denounced against those who illegally abridge this liberty. Constitutional provisions are,
in our republics, universally introduced to assert the
right, but no sanction is given to the law. Yet do not
the soundest principles require it?  If the liberty of
publishing be a right, is it sufficient to say that no one
shall be punished for exercising it? I have a right to
possess my property, yet the law does not confine itself
to a declaration that I shall not be punished for using it-:
something more is done, and it is fenced round with
penalties, imposed on those who deprive me of its enjoyment.
Why should there be this difference in the protection
which the law affords to those different rights? Not
certainly because the one in question is considered as of
small moment: every bill of rights since the art of printing has been known, testifies how highly it has been
prized.  This anomaly may, in states governed by the
common law, be accounted for by the reflection, that
every breach of a constitutional privilege might there be
considered as a misdemeanor, and punished as such,
although no penalty were contained in the law. But
here, where nothing is an offehice but that which is
plainly and especially declared to be such by the letter
of the law, where we have banished all constructive.offences, here our code would be incomplete without the
-insertion of this class.
All violence or menace of violence, or any other of the




so0                 itEP ORT ON
means which are enumerated in the code; all exercise of
official influence or authority which may abridge this
valuable privilege, is declared to be an offence. Nay,
the project which will be presented to you goes further.
And considering the constitutional provision as paramount to any act of ordinary legislation, and consequently
that all laws in derogation of it are void; it declares all
those guilty of an offence who shall execute any law
abridging or restraining the liberty of the press, contrary
to the privilege secured by the constitution. It may be
said that this is nugatory, because the same authority
which makes the code may repeal it, and that the legislature which could so far forget their duty as to violate
the constitution, would certainly abrogate the law by
which it was made punishable. To this I answer, that
the consequence does not follow. Attacks on constitutional rights are seldom openly or directly made; the
repeal of this part of the code would be an acknowledgment, on the part of those who procured it, that they
were hostile to the right secured by the constitution.
This, in a popular government, no representative would
dare to avow; and however desirous a faction might be
to get rid of this formidable censor of their principles,
operations and plans, they would never dare openly to
declare their fears. But by means of these provisions in
your code, all those insidious attempts by which valuable
privileges are generally destroyed, will be prevented; the
people will be put on their guard against them; and the
judiciary will. be armed with legal authority for their
punishment and suppression.
I wish to have it distinctly understood, that the preceding division and classification of offences is introduced
to give a method to the work, which will aid the memory;
render reference more easy; enable the student to comprehend the whole plan, and future legislators to apply
amendments and ameliorations with greater effect.  But
that they are not intended, in any manner, to have a constructive operation. Each offence is to be construed by
the definition which is given of it, not by the division or




THE PLAN OF A PENAL CODE.            31
class in which it is placed. The mixed nature of many
offences, and the impossibility of making any precise line
of demarcation, even between the two great divisions,
render this remark necessary.
After the prohibitory and mandatory part of the penal
law, we naturally come to consider its sanction or the
means of securing obedience to its provisions.
The first of these are the precautionary measures to
prevent the commission of apprehended offences, or to
arrest the completion of those which are begun. These
are provided for, in the fourth book, and do not, very
essentially, differ from those which are known to the
English law.
In considering this important branch of the subject,
we must refer to the principles established in the preliminary chapter. If those are right, the law punishes,
not to avenge, but to prevent crimes; it effects this, first,
by deterring others by the example of its inflictions on
the offender; secondly, by its effects on the delinquent
himself; taking away, by restraint, his power; and by
reformation, his desire of repeating the offence. No
punishments, greater than are necessary to effect this
work of prevention, let us remember, ought to be inflicted;
and that those which produce it, by uniting reformation
with example, are the best adapted to the end. It would
be disgusting and unnecessary to pass in review all the
modes of punishment which have, even in modern times,
been used, rather, it would seem, to gratify vengeance,
than to lessen the number of offences. A spirit of enlightened legislation, taught by Montesquieu, Beccaria,
Eden, and others; names dear to humanity! has banished
some of the most atrocious from the codes of Europe.
But it has happened, in this branch of jurisprudence, as
it has in most other departments of science, that long
after the great principles are generally acknowledged, a
diversity of opinion exists on their application to particular subjects. Thus, although the dislocation of the joints
is no longer considered as the best mode of ascertaining
innocence or discovering guilt; although offences against




32                 iREPORT ON4
the deity are no longer expiated by the burning faggot;
or those against the majesty of kings avenged by the hot
pincers, and the rack, and the wheel; still many other
modes of punishment have their advocates, which, if not
equally cruel, are quite as inconsistent with the true
maxims of penal law; it may, therefore, be proper to
pass some of them in review.
They may be reduced to these: banishment; deportation; simple imprisonment; imprisonment in chains;
confiscation of property; exposure to public derision;
labour on public works; mutilation and other indelible
marks of disgrace; stripes, or the infliction of other
bodily pain; death.
Banishment, even if it were an efficient remedy, can
hardly, I think, be thought consistent with the duties
which one nation owes to another. The convict who is
forced from one country, must take refuge in another;
and wherever he goes, he carries with him his disposition
to break the laws and corrupt the morals of the country.
The same crimes which make him unfit to reside in his
own, render him mischievous to that which he chooses
for his retreat. Every nation, then, would have a right
to complain of laws that made their territories the retreat
of banditti, and other malefactors of their neighbours.
Each, at least, would have a right to refuse their entrance.
If all do it, then the punishment cannot be inflicted; or
must be commuted into that which is denounced against
those who return. If no laws are made to expel them,
or guard against their entrance, the favour must be
reciprocal, and each nation would be bound to receive
from its neighbour a number of foreign rogues, equal to
that of the domestic villains they send out. The Romans,
who commanded the civilized world, might employ this
punishment with effect. In modern times, it is only
used (and that rarely) for state offences, and then it is
generally dangerous; because the man banished for
political crimes, has frequently the power of doing more
extensive mischief abroad than at home. It is also a
very inefficient remedy; to many it would have no




THE PLAN OF A PENAL CODE.                3,3
terrors, and those upon whose love of country it might
operate as a punishment, could find many means of
evading it by an undiscovered return.
Deportation, or rather relegation, is more efficient,
because return is more difficult than from simple banishment. It also operates favourably sometimes, by producing reformation, and while enforced, effectually prevents a repetition of the offence; at least on the society
where it was first committed. But its effect, as an
example, is nearly lost, because the culprit himself
scarcely thinks it a punishment; and because the distance
causes both him and his crime to be forgotten as completely as if he was removed by death; and its practical
operation in England, where it has been long tried under
various forms, does not warrant the conclusion that it
ought to be adopted here."
The legislature of Pennsylvania have received, very
favourably, a plan presented by Dr. Mease, recommending this mode of punishment; he has sent me a copy of
his papers, which are at the disposal of the general
assembly: they are written with ingenuity, but under
the circumstances in which this state is placed, I cannot
propose his scheme as either a practicable or an advisable
mode of disposing of convicts.
Simple imprisonment has obvious defects; as a corrective, it is nearly the worst that could be applied. If
solitary, it is, for most offences, too severe.  If it be not
solitary, it becomes a school for vice and'every kind of
corruption. The want of employment, even when men
are at liberty, leads them to evil associations, and the
proverb does not much exaggerate, which calls it the
root of all evil. But when to idleness is joined an asso*- A very respectable witness, examined before the house of commons,
says, " as to transportation, I, with deference, think it ought not to be
adopted, except for incorrigible offenders, and then it ought to be for
life; if it is for seven years, the novelty of the thing, and the prospect of
returning to their friends and associates, reconciles offenders to it, so that,
in fact, they consider it no punishment, and when this sentence is passed
on men, they frequently say, thank you, my lord."
C




34                   REPORT ON
ciation with all that is most profligate and unprincipled,
it may be easily imagined how quick must be the progress
from innocence to vice, from vice to crime. The band of
the guilty thus collected, acquire a knowledge of each
other's capacity in the commission of offences; they feel
their strength, they recruit their numbers, they organize
themselves for their warfare on society, and come out
completely disciplined and arrayed against the laws.
Imprisonment in irons has all the evils of simple imprisonment, and adds to them that of inequality, and the
danger of arbitrary imposition. The weight of the chains,
if regulated by law, must be a torture to the weak, while
the robust delinquent will bear them without pain. If
they are at the discretion of the jailor, there can be no
better engine for petty tyranny and extortion.
Confiscation of property has few advocates, and ought to
have none. It has every defect that can attach to a mode of
punishment, except that it is in some degree remissible; it is
unequal, because it forfeits for the same offence the largest
and the smallest fortune. It is cruel, because it deprives
numbers of the means of subsistence for the fault of one.
It is unjust, for it punishes, without distinction, the
innocent as well as the guilty. Tt is liable to the worst
of abuses, because it makes it the interest of the government to multiply convictions. This last characteristic is
perhaps the reason why it retains a place in the penal
jurisprudence of Europe.
The next four heads may be classed together: the
pillory, stocks, and other contrivances for public exposure,
labour in chains, and on the public works, indelible
marks of disgrace (always attended with bodily pain),
and the infliction of stripes, all are liable to the same
radical objections; they all discard the idea of reformation; all are unequal, and subject to arbitrary imposition;
with the exception of public labour, they are all momentary in their application, and when the operation is over,
they impose a necessity on the patient, with the alternative of starving, immediately to repeat his offence; he
accordingly, with increased dexterity, commences a new




THE PLAN OF A PENAL CODE.           35
career; forms a corps of similar associates to prey upon
society; seduces others by the example of his impunity
in the numerous instances in which he escapes detection; swells the list of convictions in those where
his vigilance is defeated, and finally becomes a fit subject
for the grand remedy —the punishment of death.  I
approached the inquiry into the nature and effect of this
punishment with the awe becoming a man who felt,
most deeply, his liability to err, and the necessity of
forming a correct opinion on a point so interesting to the
justice of the country, the life of its citizens, and the
character of its laws. I strove to clear my understanding
from all prejudices which education, or early impressions
might have created, and to produce a frame of mind
fitted for the investigation of truth, and the impartial
examination of the arguments on this great question.
For this purpose, I not only consulted such writers on the
subject as were within my reach, but endeavoured to
procure a knowledge of the practical effect of this punishment on different crimes in the several countries where
it is inflicted. In my situation, however, I could draw
but a very limited advantage from either of these
sources: very few books on penal law, even those most
commonly referred to, are to be found in the scanty
collections of this place, and my failure in procuring
information from the other states, is more to be regretted on this than any other topic on which it was
requested. With these inadequate means, but after the
best use that my faculties would enable me to make of
them; after long reflection, and not until I had canvassed
every argument that could suggest itself to my mind, I
came to the conclusion, that the punishment of death
should find no place in the code which you have directed
me to present. In offering this result, I feel a diffidence,
which arises, not from any doubt of its correctness; I
entertain none; but from the fear of being thought presumptuous in going beyond the point of penal reform, at
which the wisdom of the other states has hitherto thought
proper to stop;- and from a reluctance to offer my




36                  REPORT ON
opinions in opposition to those (certainly more entitled
to respect than my own) which still support the
propriety of this punishment for certain offences. On
a mere speculative question, I should yield to Fthis
authority; but here I could not justify the confidence
you have reposed in me, were I to give you the opinions
of others, no matter how respectable they may be,
instead of those which my best judgment assured me
were right.
The example of the other states is certainly entitled
to great respect; the greater, because all, without exception, still retain this punishment; but this example loses
some of its force when we reflect on the slow progress of
all improvement, and on the stubborn principles of the
common law, which have particularly retarded its advance
in jurisprudence.
In England, their parliament had been debating for
near a century before they would take off capital punishment from two or three cases, in which every body
allowed it was manifestly cruel and absurd: they have
retained it in at least an hundred others of the same
description; and when we reflect on these facts, and observe
the influence which the prevailing opinions of that country
have always had on the literature and jurisprudence of
ours, we may account for the several states having
stopped short in the reform of their penal law, without
supposing them to have arrived at the point of perfection,
beyond which it would be both unwise and presumptuous
to pass. As to the authority of great names, it loses
much of its force since the mass of the people have began to
think for themselves; and since legislation is no longer
considered as a trade, which none can practise with
success, but those who have been educated to understand
the mystery; the plain matter of fact, practical manner,
in which that business is conducted with us, refers more
to experience of facts than theory of reasoning: more to
ideas of utility drawn from the state of society, than
from the opinions of authors on the subject.  If the
argument were to be carried by the authority of names,




THE PLAN OF A PENAL CODE.
that of Beccaria, were there no other, would ensure the
victory. But reason alone, not precedent nor authority,
must justify me in proposing to the general assembly this
important change; reason alone can persuade them to
adopt it. I proceed therefore to develope the considerations which carried conviction to my mind, but
which being perhaps now more feebly urged than they
were then felt, may fail in producing the same effect
upon others. A great part of my task is rendered unnecessary, by the general acknowledgment, universal, I
may say, in the United States, that this punishment
ought to be abolished in all cases, excepting those of
treason, murder and rape.  In some states arson is
included; and lately, since so large a portion of our
influential citizens have become bankers, brokers, and
dealers in exchange, a strong inclination has been discovered to extend it to forgery, and uttering false bills
of exchange. As it is acknowledged then to be an
inadequate remedy for minor offences, the argument
will be restricted to an inquiry, whether there is any
probability that it will be more efficient in cases of
greater importance. Let us have constantly before us,
when we reason on this subject, the great principle, that
the end of punishment is the prevention of crime.
Death, indeed, operates this end most effectually, as
respects the delinquent; but the great object of inflicting
it is the force of the example on others. If this spectacle of horror is insufficient to deter men from the comrn
mission of slight offences, what good reason can be given
to persuade us that it will have this operation where the
crime is more atrocious? Can we believe that the fear of
a remote and uncertain death will stop the traitor in the
intoxicating moment of fancied victory over the constitution and liberties of his country? —while in the
proud confidence of success, he defies heaven and earth,
and commits his existence to the chance of arms, that the
dread of this punishment will " check his pride;" force
him, like some magic spell, to yield obedience to the laws,
and abandon a course which, he persuades himself; makes




38                   REPORT ON
a " virtue" of his "ambition."  Will it arrest the hand
of the infuriate wretch, who, at a single blow, is about to
gratify the strongest passion of his soul in the destruction
of his deadly enemy? Will it turn aside the purpose of
the secret assassin, who meditates the removal of the only
obstacle to his enjoyment of wealth and honours? Will
it master the strongest passions and counteract the most
powerful motives, while it is too weak to prevent the
indulgence of the slightest criminal inclination? If this
be true, it must be confessed, that it presents a paradox
which will be found more difficult to solve, when we
reflect that great crimes are, for the most part, committed
by men whose long habits of guilt have familiarized them
to the idea of death; or to whom strong passions or
natural courage have rendered it, in some measure, indifferent; and that the cowardly poisoner or assassin
always thinks that he has taken such precautions as will
prevent any risk of discovery. The fear of death, therefore, will rarely deter from  the commission of great
crimes. It is, on the contrary, a remedy peculiarly
inapplicable to those offences. Ambition, which usually
inspires the crime of treason, soars above the fear of
death; avarice, which whispers the secret murder, creeps
below it; and the brutal debasement of the passion that
prompts the only other crime, thus punished by our law,
is proverbially blind to consequences, and regardless of
obstacles that impede its gratification-threats of death
will never deter men who are actuated by these passions;
many of them affront it in the very commission of the
offence, and therefore readily incur the lesser risk of
suffering it, in what they think the impossible event of
detection. But present other consequences more directly
opposed to the enjoyments which were anticipated in the
commission of the crime, make those consequences permanent and certain, and then, although milder, they will
be less readily risked than the momentary pang attending
the loss of life; study the passions which first suggested
the offence, and apply your punishment to mortify and
counteract them. The ambitious man cannot bear the




THE PLAN OF A PENAL CODE.           39
ordinary restraints of government-subject him to those
of a prison; he could not endure the superiority of the
most dignified magistrate-force him to submit to the
lowest officer of executive justice; he sought, by his
crimes, a superiority above all that was most respectable
in society —reduce him in his punishment to a level with
the most vile and abject of mankind. If avarice suggested the murder-separate the wretch for ever from
his hoard; realize the fable of antiquity; sentence him,
from his place of penitence and punishment, to see his
heirs rioting on his spoils; and the corroding reflection
that others are innocently enjoying the fruits of his crime,
will be as appropriate a punishment in practical as it was
feigned to be in poetical justice. The rapacious spendthrift robs to support his extravagance, and murders to
avoid detection; he exposes his life that he may either
pass it in idleness, debauchery and sensual enjoyment, or'lose it by a momentary pang-disappoint his profligate
calculation; force him to live, but to live under those
privations which he fears more than death; let him be
reduced to the coarse diet, the hard lodging, and the
incessant labour of a penitentiary.
Substitute these privations, which all such offenders
fear, which they have all risked their lives to avoid;
substitute these, to that death which has little terror for
men whose passions or depravity have forced them to
plunge in guilt, and you establish a fitness in the punishment to the crime; instead of a momentary spectacle,
you exhibit a lesson, that is every day renewed; and
you make the very passions which caused the offence the
engines to punish it, and prevent its repetition.
Reformation is lost sight of in adopting this punishment, but ought it to be totally discarded? May not
even great crimes be committed by persons whose minds
are not so corrupted as to preclude the hope of this effect?
They are, sometimes, produced by a single error-often
are the consequences of a concatenation of circumstances
never likely again to occur, and are very frequently the
effect of a momentary hallucination, which, though hot




40                    REPORT -ON_
sufficient to excuse, ought sometimes to palliate the guilt;
yet the operation of these several causes, the evident
gradation in the degrees of guilt which they establish, are
levelled before this destructive punishment. The man
who, urged by an irresistible impulse of nature, sacrifices
the base seducer who has destroyed his domestic happiness; he who having been calumniated, insulted and dishonoured, at the risk of his own life, takes that of the
slanderer; are, in the eye of this harsh law, equally deserving of death with the vile assassin who murders for
hire, or poisons for revenge; and the youth, whose weakness in the commission of a first offence has yielded to
the artful insinuations or overbearing influence of a
veteran in vice, must perish on the same scaffold with
the hardened and irreclaimable instigator of his crime.
It may be said, that the pardoning power is the proper
remedy for this evil; but the pardoning power, in capital
cases, must be exercised, if at all, without loss of time;
without that insight into character which the penitentiary
system affords. It is, therefore, necessarily liable to
abuse; and there is this further objection to its exercise,
that it leaves no alternative between death and entire
exemption from punishment; but in every degree of
crime, some punishment is necessary; the novice, if
subject to no reclaiming discipline, will soon become a
professor in guilt: but let the corrective be judiciously
applied, and its progress will discover whether he may
be again trusted in society, or whether his depravity is
so rooted as to require continued confinement.
In coming to a resolution on this solemn subject, we
must not forget another principle we have established,
and I think on the soundest reasons, that other things
being equal, that punishment should be preferred, which
gives us the means of correcting any false judgment, to
which passion, indifference, false testimony, or deceiving
appearances, may have given rise. Error from these,
or other causes, is sometimes inevitable, its operation is
instantaneous, and its fatal effects in the punishment of
death, follow without delay; but time is required for its




THE PLAN OF A PENAL CODE.           41
correction; we retrace our steps with difficulty;it is
mortifying to acknowledge that we have been unjust,
and during the time requisite for the discovery of the
truth, for its operation on our unwilling minds, for the
interposition of that power, which alone can stop the
execution of the law, its stroke falls, and the innocent
victim dies. WVhat would not then the jurors who convicted; the judges who condemned; the mistaken witness
who testified to his guilt; what would not the whole
community who saw his dying agonies, who heard, at that
solemn moment, his fruitless asseverations of innocence;
what would they not all give to have yet within their
reach the means of repairing the wrongs they had witnessed or inflicted?
Instances of this kind are not unfrequent; many of
them are on record; several have taken place in our own
day, and a very remarkable example which was given but
a few years since, in one of the northern states, shows,
in a striking manner, the danger of those punishments
which cannot be recalled or compensated, even though
the innocence of the sufferer is rendered clear to demonstration. A few such instances, even in a century, are
sufficient to counteract the best effects that could be
derived from example. There is no spectacle that takes
such hold on the feelings as that of an innocent man
suffering by an unjust sentence; one such example is
remembered, when twenty of merited punishment are
forgotten; the best passions take part against the laws,
and arraign their operation as iniquitous and inhuman.
This consideration alone, then, if there were no others,
would be a most powerful argument for the abolition of
capital punishments; but there are others no less cogent.
To see a human being in the full enjoyment of all the
faculties of his mind, and all the energies of his body; his
vital powers attacked by no disease; injured by no accident; the pulse beating high with youth and health; to
see him, doomed by the cool calculation of his fellow-men
to certain destruction, which no courage can repel, no art
or persuasion avert; to see a mortal distribute the most




42                   REPORT ON
awful dispensations of the Deity, usurp his attributes,
and fix, by his own decree, an inevitable limit to that
existence which Almighty power alone can give, and
which its sentence alone should destroy; must give rise
to solemn reflections, which the imposing spectacle of a
human sacrifice naturally produces, until its frequent
recurrence renders the mind insensible to the impression.
But in a country where the punishment of death is rarely
inflicted, this sensation operates in all its force; the
people are always strongly excited by every trial for a
capital offence; they neglect their business, and crowd
round the court; the accused, the witnesses, the counsel,
everything connected with the investigation becomes a
matter of interest and curiosity; when the public mind
is screwed up to this pitch, it will take a tone from the
circumstances of the case, which will rarely be found to
accord with the impartiality acquired by justice.
If the accused excite an interest from his youth, his
good character, his connections, or even his countenance
and appearance, the dreadful consequences of conviction,
and that, too, in the case of great crimes as well as minor
offences, lead prosecutors to relax their severity, witnesses
to appear with reluctance, jurors to acquit against evidence, and the pardoning power improperly to interpose.
If the public excitement take another turn, the consequences are worse; indignation against the crime is
created into a ferocious thirst of vengeance; and if the
real culprit cannot be found, the innocent suffers on the
slightest presumption of guilt; when public zeal requires
a victim, the innocent lamb is laid on the altar, while the
scape-goat is suffered to fly to the mountain. This
savage disposition increases with the severity and the
frequency of capital inflictions, so that in atrocious as well
as in lighter offences, this species of punishment leads
sometimes to the escape of the guilty, often to the conviction of the innocent.
Whoever has at all observed the course of criminal
proceedings, must have witnessed what I have just
endeavoured to describe; undeserved indulgence, unjust




THE PLAN OF A PENAL CODE.           43
severity; opposite effects proceeding  from  the same
cause; the unnecessary harshness of the punishment.
But when no such fatal consequences are to be the
result, the course of justice is rarely influenced by passion
or prejudice. The evidence is produced without difficulty, and given without reluctance; it has its due effect
on the minds of jurors, who are under no terrors of pronouncing an irremediable sentence: and pardons need
not be granted, unless innocence is ascertained, or reformation becomes unequivocal.
Another consequence of the infliction of death is, that
if frequent it loses its effect; the people become too much
familiarized with it to consider it as an example; it is
changed into a spectacle, which must frequently be
repeated to satisfy the ferocious taste it has formed. It
would be extremely useful in legislation, if the true cause
could be discovered of this atrocious passion for witnessing human agonies and beholding the slaughter of human
beings. It has disgraced the history of all nations; in
some it gave rise to permanent institutions, like that of
the gladiators in Rome; in others it has shown itself
like a moral epidemic, which raged with a violence proportioned to the density of population, for a limited time,
and then yielded to the influence of reason and humanity.
Every people has given us instances of this delirium;
but the religious massacre of St. Bartholomew, and the
political slaughters during the reign of terror in France,
exemplify, in a striking manner, the idea I mean to
convey. The history of our own country, young as it
is, is not free from this stain. The judicial murder of
the wizards and witches of New England, and of a
great number of poor wretches, during what was called
the negro-plot at New York, furnish us with domestic
lessons on this subject.  The human sacrifices which
we find in the early history of almost every nation,
proceeded from another cause, the idea of vicarious atonement for sins; but they were attended with the same
heart-hardening effect.  Human sufferings are never
beheld, for the first time, but with aversion, terror and




44                  iREPORT ON
disgust. Nature has strongly implanted this repugnance
on our minds, for the wisest purposes: but this once
conquered, it happens in the intellectual taste as it does
in that of the senses; in relation to which last, it is
observed, that we become most fond of those enjoyments
which required, in the beginning, some effort to overcome
the disgust produced by their first use; and that our
attachment to them is in proportion to the difficulty
which was conquered in becoming familiarized to them.
Whatever may be the cause of tihis striking fact, in the
history of the human mind, its effects ought to be studied
by the legislator who desires to form a wise and permanent system.  If the sight of one capital execution
creates an inhuman taste to behold another; if a curiosity,
satisfied at first with terror, increases with its gratification,
and becomes a passion by indulgence, we ought to be
extremely careful how, by sanctioning the frequency of
capital punishments, we lay the foundation for a depravity,
the more to be dreaded, because, in our government,
popular opinion must have the greatest influence on all
its departments, and this vitiated taste would soon be
discovered in the decisions of our courts and the verdicts
of our juries.
But if this punishment be kept for great occasions, and
the people are seldom treated with the gratification of
seeing one of their fellow-creatures expire by the sentence
of the law; a most singular effect is produced; the sufferer,
whatever be his crime, becomes a hero or a saint; he is
the object of public attention, curiosity, admiration, and
pity. Charity supplies all his wants, and religion proves
her power, by exhibiting the outcast and murderer, though
unworthy to enjoy existence upon earth, yet purified from
the stain of his vices and crimes, converted by her agency
into an accepted candidate for the happiness of heaven;
he is lifted above the fear of death by the exhortations
and prayers of the pious; the converted sinner receives
the tender attentions of respectability, beauty and worth:
his prison becomes a place of pilgrimage, its tenant, a
saint awaiting the crown of martyrdom; his last looks




THE PLAN OF A PENAL CODE.           45
are watched, with affectionate solicitude; his last words
are carefully remembered and recorded; his last agonies
are beheld with affliction and despair; and after suffering
the ignominious sentence of the law, the body of the
culprit whose death was infamy, and whose life was crime,
is attended respectfully and mournfully to the grave, by
a train that would not have disgraced the obsequies of a
patriot or a hero. This sketch, though highly coloured,
is drawn from life: the inhabitants of one of the most
refined and wealthy of our state capitals, sat for the
picture, and although such exalted feelings are not always
excited, or are prudently repressed, yet they are found in
nature, and in whatever degree they exist, it cannot be
doubted, that in the same proportion, they counteract
every good effect that punishment is intended to produce.
The hero of such a tragedy can never consider himself as
the actor of a mean or ignoble part; nor can the people
view in the object of their admiration or pity, a murderer
and a robber, whom they would have regarded with horror,
if their feelings had not been injudiciously enlisted in his
favour. Thus the end of the law is defeated, the force of
example is totally lost, and the place of execution is converted into a scene of triumph for the sufferer, whose
crime is wholly forgotten, while his courage, resignation,
or piety, mark him as the martyr, not the guilty victim,
of the laws.
Where laws are so directly at war with the feelings of
the people whom they govern, as this and many other
instances prove them to be, these laws can never be wise
or operative, and they ought to be abolished.
Quid leges sine woribus, vctnce projiciunt?  But if laws
unsupported by the morals of the people are inefficient,
how can we reasonably expect that they will have any
effect when they are counteracted by moral feelings as
well as by ideas of religion. This is the effect of capital
punishments in a country where they are not commonly
inflicted. Let us now see what is their result, where
they are unhappily too frequent.
In England, a great portion of the eloquence and




46                  REPORT ON
learning, and all the humanity of the nation are at work, in
an endeavour, not to abolish the punishment of death (that
proposition would be too bold in a government where
reform, in any department, might lead to revolution in
all), but to restrict it to the more atrocious offences.
This has produced a parliamentary inquiry, in the course
of which the reports, to which I have alluded before,
were made; one of them contains the examinations of
witnesses before a committee of the house of commons.
From one of these, that of a solicitor who had practised
for more than twenty years in the criminal courts, I make
the following extracts:
"In the course of my practice, I have found that the
punishment of death has no terror upon a common thief;
indeed, it is much more the subject of ridicule among them
than of serious deliberation. The certain approach of an
ignominious death doesnot seem to operate upon them; for
after the warrant has come down, I have seen them treat it
with levity. I once saw a man, for whom I had been concerned the day before his execution, and on offering him
condolence, and expressing my concern at his situation, he
replied, with an air of indifference,'players at bowls must
expect rubbers;' and this man I heard say, that it was only
a few minutes, a kick and a struggle, and all was over.
The fate of one set of culprits, in some instances, had no
effect, even on those who were next to be reported for
execution; they play at ball and pass their jokes as if
nothing was the matter. I have seen the last separation
of persons about to be executed. There was nothing of
solemnity about it, and it was more like the parting for
a country journey, than taking their last farewell. I
mention these things, to show what little fear common
thieves entertain of capital punishment; and that so far
from being arrested in their wicked courses by the distant
possibility of its infliction, they are not even intimidated
by its certainty."
Another of those respectable witnesses (a magistrate
of the capital) being asked whether he thought that
capital punishment had much tendency to deter criminals




THE PLAN OF A PENAL CODE.          47
from the commission of offences, answered, " I do not.
I believe it is well known to those who are conversant
with criminal associations in this town, that criminals live
and act in gangs and confederacies, and that the execution
of one or more of their own body, seldom has a tendency
to dissolve the confederacy, or to deter the remaining
associates from the continuance of their former pursuits.
Instances have occurred within my own jurisdiction, to
confirm me in this opinion. During one sitting, as a
magistrate, three persons were brought before me for
uttering forged notes. During the investigation, I discovered that those notes were obtained from. a room in
which the body of a person named Wheller (executed on
the preceding day, for the same offence) then was laid,
and that the notes in question were delivered for circulation by a woman with whom he had been living. This
is (he adds) a strong case, but I have no doubt that it is
but one of very many others."
The ordinary of Newgate, a witness better qualified
than any other to give information on this subject,
being asked, "Have you made any observations as to
the effect of the sentence of death upon the prisoners?"
answers-" It seems scarcely to have any effect upon
them; the generality of people under sentence of death
are thinking, or doing rather, any thing than preparing
for their latter end." Being interrogated as to the effect
produced by capital executions on the minds of the
people, he answers, "I think shock and horror at the
moment, upon the inexperienced and the young, but
immediately after the scene is closed, forgetfulness altogether of it, leaving no impression on the young and
inexperienced. The old and experienced thief says, the
chances have gone against the man who has suffered;
that is of no consequence, that is what was to be
expected; making no serious impression on the mind.
I have had occasion to go into the press-yard within an
hour and a half after an execution, and I have there found
them amusing themselves, playing at balls or marbles,
and appearing precisely as if nothing had happened."




148                  REPORT ON
No colouring is necessary to heighten the effect of
these sketches. Nothing, it appears to me, can more
fully prove the utter inutility of this waste of human
life, its utter inefficiency as a punishment, and its demoralizing operation on the minds of the people.
The want of authentic documents prevents me at
present from laying before the general assembly some
facts which would elucidate the subject, by examples,
from the records of criminal courts in the different states.
The prevalence of particular offences, as affected by the
changes in their criminal laws; the number of commitments, compared with that of convictions; and the effect
which the punishment of death has on the frequency of
the crimes for which it is inflicted; accurate information
on these heads would have much facilitated the investigation in which we are engaged. But although from the
causes which I have stated, these are not now within our
reach; there are yet some facts generally known on the
subject, which are not devoid of interest or instruction.
Murder, in all the states, is punished with death; in
most of them it is, except treason (which never occurred
under the state laws), the only crime that is so punished.
If this were the most efficacious penalty to prevent
crimes, this offence would be one of which we should see
the fewest instances. Is it so? To answer this question,
we must establish a comparison, not between it and other
offences,-that would never lead us to a true result;
there are some crimes that are so destructive of the very
existence of society, create such universal alarm, and
suppose so great a depravity, that the perpetrator is
always viewed with abhorrence by the whole community,
and public execration would inflict a punishment, even if
the laws were silent.  The number of such crimes,
therefore, whatever may be. the punishment assigned to
them, must necessarily be fewer, in proportion, than
those which do not inspire the same horror, or spread
the same alarm; of this nature is murder; we must,
therefore, look to other countries, to establish our point
of comparison.




THE PLAN OF A PENAL CODE.          49
Unfortunately, the crime is punished in the same
manner as it is here, in the only country we have sufficient data to reason upon, and therefore the result of
the inquiry cannot be conclusive; but if in that country
a number of other offences are punished with death,
which do not incur that penalty here, and if those minor
offences prevail in a much greater degree there than they do
here, where they are not so punished, while murder, and
robbery with intent to murder (almost the only crimes
punished in that manner here), be more frequently committed in this country than in that which I select for the
comparison, then we shall have some reason to doubt the
efficacy of this violent remedy.
In London and Middlesex, for sixteen years ending in
1818, thirty-five persons were convicted of murder, and
stabbing with intent to murder, which is an average of a
fraction more than two in a year. In the city of New
Orleans, seven persons suffered for the same crime, in
the space of the last four years, which is very little less
than the same average; but the population of New
Orleans did not, during the period, amount to more than
35,000, which is to that of Middlesex and London, in
round numbers, as one to twenty-seven; therefore, the
crime of murder was nearly twenty-seven times as frequent, in proportion to numbers, as in London. Almost
the same proportion holds between the whole state and
England and Wales, in relation to this crime; nineteen
executions having taken place for murder, in the last
seven years, in Louisiana, and one hundred and fiftyfour during the seven years, ending in 1818, in England
and Wales. In London and Middlesex, eight hundred
and eighty-five persons were convicted of forgery and
counterfeiting in seven years, ending in 1818. During
an equal period, seven persons were convicted of the
same offence in the whole state, which makes the crime
eighteen times more frequent in London, in proportion
to number, than it is here. Six thousand nine hundred
and seventy-four convictions for larceny took place in
the same seven years in London: and for a like
D




50                  REPORT ON
period, in the state of Louisiana, one hundred, which is
near ten to one more there than here, in proportion to
the population. Many capital convictions were had there,
for crimes of which none were committed here, and
which, if they had been, would have been punished only
by imprisonment at hard labour.  I well know that the
state of society in the two countries, the degree of temptation, the ease or difficulty of obtaining subsistence, and
other circumstances, as well as the operation of the laws,
may produce the difference I have shown. But does it
not raise serious doubts as to the efficacy of the capital
punishment, to observe this double effect, that almost
the only crime which we punish in that manner, is more
frequent in the proportion of twenty-seven to one, while
those which are the object of a milder sanction, are
almost in the same ratio less than in the country with
which we make the comparison?
The laws of none of the states punish highway robbery
with death; those of the United States affix this punishment to the robbery of the mail, under circumstances
which generally accompany it. Yet it is believed that
this last species of highway robbery is more frequent
than the other-another proof that the fear of death is
not a more powerful preventative of crime than other
punishments.
I do not urge the doubts which many wise and conscientious persons have entertained of the right of
inflicting this punishment, because I am inclined to
think that the right can be well established.  If this
measure be the only one that can prevent the crime,
government has a right to adopt it, unless the evil arising
from the punishment be greater than that which could
be apprehended from the offence.  If it were proved,
that the fruit in a garden could not be preserved without
punishing the boys who stole it with death, the evil to
be apprehended from the offence is so much less than
that produced by the punishment, that it ought never to
be inflicted by the law, much less (as in the case of the
English spring-guns) by the party injured; but on the




THE PLAN OF A PENAL CODE.           51
contrary, it is a less evil to destroy the life of an assassin,
than to permit him to take that of a man, whose existence is useful to his country, and necessary to his family.
Whenever, therefore, in this latter case, the alternative
is proved to be the only one, I do not think we ought to
hesitate from any doubt of the right: but if the necessity of the punishment, as well as the preponderating
evil of the crime, cannot be clearly shown, the right
cannot exist. The burthen of argument rests here on
those who advocate this punishment; they must show
that it is the only means of repressing the offence: they
must showv, that in the cases to which they mean to
apply it, the evil of the offence is greater than the
punishment. How far they can succeed in the first part
of this task, has been already, in part, examined; on the
latter branch of the position it may be proper to observe,
that in estimating the evil resulting from the impunity
of any particular offence, in order to compare it with
that of the punishment, we must recollect: that the one
is a certain, the other a problematical evil. For instance,
a man commits murder; if it were certain, if you did not
put him to death, either that he himself would repeat
the offence, or that the example of his.impunity would
induce another to do it, the case both of necessity to
prevent crime, and of the preponderating evil of the
offence over that of the remedy, would be made out.
But it does not follow, because a man has once committed
a crime, he will therefore repeat it, nor that another will
be seduced by his example to do so: both, I grant, are
probable; then we have the probability of two evils to
put in competition with the certainty of one; but a
strong probability of a great evil ought to countervail
the certainty of a smaller one; and if in this instance the
probability be great, that society might suffer the loss of
its worthiest citizens, this ought not to be placed in competition with the evil of putting an assassin to death.
But if by other means, the chance of the uncertain evil
can be reduced to a bare possibility, then the certain
evil should not be incurred. Admitting, therefore, that




5 2                  REPORT ON'
the infliction of death is the best means of preventing
the repetition of the offence, yet if perpetual imprisonment would as effectually prevent the offender from
repeating it, and would also operate as an example, so as
to reduce to a possibility the chance of another being
induced by the mildness of the punishment to commit
the crime, then the certain evil of taking away human
life ought not to be incurred, because the remote possibility of even a great evil cannot justify it.
But before we adopt any of these calculations (always
liable to the greatest difficulty in practice), we ought to
inquire whether the position which alone renders them
necessary be true; whether the punishment of death is
necessary to prevent offences. In the proper sense of the
expression, we know this is not the case; to say that a
certain single cause is necessary to produce a given effect,
supposes, that if the cause exist, the effect will certainly
follow; but it is not pretended that the punishment of
death will, in all cases, prevent the crime for which it is
inflicted; all that is meant is, that it is better adapted to
that end than any other kind of punishment: some
reasons have already been given to show that it is not.
Let us examine those which are usually given on the
affirmative side of this interesting question.
First. There are those who support it by arguments
drawn from religion. The divine spirit infused into the
great legislator of the Jews, from whose code these arguments are drawn, was never intended to inspire a system
of universal jurisprudence. The theocracy given as a
form of government to that extraordinary people, was not
suited to any other; as little was the system of their
penal laws, given on the mysterious mountain, promulgated from the bosom of a dark cloud, amid thunder
and lightning; they were intended to strike terror into
the minds of a perverse and obdurate people; and as one
means of effecting this, the punishment of death is freely
denounced for a long list of crimes; but the same authority establishes the lex talionis, and other regulations,
which those who quote this authority would surely not




THE PLAN OF A PENAL CODE.          53
wish to adopt. They forget that the same Almighty
author of that law, at a later period, inspired one of his
prophets with a solemn assurance, that might with propriety be placed over the gates of a penitentiary, and
confirmed it with an awful asseveration,-" As I LIVE,
saith the LORD GOD, I have no pleasure in the DEATH of a
sinner, but rather that he should TURN FROM HIS WICKEDNESS AND LIVE." They forget, too, although they are
Christians who use this argument, that the divine author
of their religion expressly forbids the retaliatory system,
on which the punishment of death for murder is founded;
they forget the mild benevolence of his precepts, the
meekness of his spirit, the philanthropy that breathes in
all his words, and directed all his actions; they lose sight
of that golden rule which he established: " To do nothing
to others that we would not desire them to do unto us;"
and certainly pervert the spirit of his holy and merciful
religion, when they give it as the sanction for sanguinary
punishments. Indeed, if I were inclined to support my
opinion by arguments drawn from religion, the whole
New Testament should be my text, and I could easily
deduce from it authority for a system of reform as
opposed to one of extermination. But although the
legislator would be unworthy of the name, who should
prescribe anything contrary to the dictates of religion,
and particularly to those of that divine morality on which
the Christian system is founded, yet it would not be less
dangerous, to make its dogmas the ground-work of his
legislation, or to array them in defence of political systems.
In a government, where all religions have equal privileges, it would be obviously unjust; it would lessen the
reverence for sacred, by mixing them with political institutions, and perverting to temporal- uses those precepts
which were given as rules for the attainment of eternal
happiness.
Secondly. The practice of all nations, from the remotest antiquity, is urged in favour of this punishment;
the fact, with some exceptions, is undoubtedly true, but
is the inference just? There are general errors, and




654                 REPORT ON
unfortunately for mankind, but few general truths,
established by practice, in government legislation. Make
this the criterion, and despotism is, by many thousand
degrees on the scale of antiquity, better than a representative government: the laws of Draco were more ancient
than those of Solon, and consequently better; and the
practice of torture quite as generally diffused as that of
which we are now treating. Idolatry in religion, tyranny
in government, capital punishments, and inhuman tortures
in jurisprudence, are coeval and coextensive. Will the
advocates of this punishment admit the force of their
argument in favour of all these abuses? If they do not,
how will they apply it to the one for which they argue?
The long and general usage of any institution gives us
the means of examining its practical advantages or
defects: but it ought to have no authority as a precedent,
until it be proved, that the best laws are the most ancient,
and that institutions for the happiness of the people are
the most permanent and most generally diffused. But
this unfortunately cannot be maintained with truth; the
melancholy reverse forces conviction on our minds.
Every where, with but few exceptions, the interest of the
many has, from the earliest ages, been sacrificed to the
power of the few. Every where penal laws have been
framed to support this power; and those institutions,
favourable to freedom, which have come down to us from
our ancestors, form no part of any original plan, but are
isolated privileges which have been wrested from the
grasp of tyranny, or which have been suffered, from
inattention to their importance, to grow into strength.
Every nation in Europe has, during the last eight or
ten centuries, been involved in a continual state of internal discord or foreign war: kings and nobles continually
contending for power; both oppressing the people, and
driving them to desperation and revolt. Different pretenders, asserting their claims to the throne of deposed
or assassinated kings; religious wars; cruel persecutions;
partition of kingdoms; cessions of provinces; succeeding
each other with a complication and rapidity that defies




THE PLAN OF A PENAL CODE.           55
the skill and diligence of the historian to unravel and
record. Add to this, the ignorance in which the human
mind was involved, during the early and middle part of
this period; the intolerant bigotry, which from its close
connection with government, stifled every improvement in
politics as well as every reformation in religion; and we
shall see a state of things certainly not favourable for the
formation of wise laws on any subject; but particularly
ill calculated for the establishment of a just or humane
criminal code. From such legislators, acting in such
times, what could be expected, but that which we
actually find; a mass of laws unjust, because made solely
with a view to support the temporary views of a prevailing party; unwise, obscure, inhuman, inconsistent,
because they were the work of ignorance, dictated by
interest, passion, and intolerance. But it would scarcely
seem prudent to surrender our reason to authorities thus
established, and to give the force of precedent to any of
the incoherent collections of absurd, cruel, and contradictory provisions which have been dignified with the
name of penal codes, in the jurisprudence of any nation
in Europe, as their laws stood prior to the last century.
No one would surely advise this; why then select any
part of the mass, and recommend it to us, merely
because it has been generally practised? If there is any
other reason for adopting it, let that be urged, and it
ought to have its weight; but my object here is to show
that from the mode in which the penal laws of Europe
have, until a very late period, been established, very
little respect is due to them merely on account of their
antiquity, or of the extent to which they have prevailed. If the criminal jurisprudence of the modern and
middle ages affords us little reason to revere either its
humanity or justice; that of the ancient world does not
give us more. The despotism of antiquity was like that
of modern times, and such as it will always be; it can
have but one character, which the rare occurrence of a
few mild or philosophic monarchs does not change: and
in the laws of the republics, there was a mixture of




56                  REPORT ON
severity and indulgence, that makes them very improper
models for imitation.  Yet in Rome, for about two'
hundred and fifty years, from the date of the valerian
law until the institutions of the republic were annihilated
by the imperial power, it was not lawful to put a Roman
citizen to death for any crime; and we cannot learn from
history that offences were unusually prevalent during that
period; but we do know that when executions became
frequent, Rome was the receptacle of every crime and
every vice. It must, however, be confessed that we have
not sufficient information to determine whether the frequency of capital punishments was the cause or the
effect of this depravity.
Modern history affords us two examples which deserve
to be attended to in this discussion.  The empress
Elizabeth of Russia,' soon after she came to the throne,
abolished the pain of death in all her extensive dominions; her reign lasted twenty years, giving ample
time to try the effect of the experiment: and Beccaria
speaks with enthusiasm of the consequences it had produced. I have not been able to procure the regulations
by which this change was effected, but as I believe the
knout (an infliction more cruel than a speedy death) was
preserved, I do not urge this example as having the
same weight it would have, if milder punishments had
been substituted.  Three years after Elizabeth  had
ceased to reign in the north of Europe, her great experiment was renewed in the south. Leopold became grand
duke of Tuscany, and one of his first acts was a declaration (rigidly adhered to during his reign) that no
offence should be punished with death; he substituted
a mild system of graduated punishments, and though I
do not think they were very judiciously chosen, yet the
consequence was, an immediate decrease in the number of
offences. We are informed, that during a considerable
p'eriod, the prisons were empty, and no complaints for
atrocious offences occurred; and he himself, after an
experiment of twenty years, declares, "that the mitigation of punishments, joined to a most scrupulous




THE PLAN OF A PENAL CODE.           57
attention to prevent crimes, and also great despatch in
the trial, together with a certainty and suddenness of
punishment to real delinquents, had, instead of increasing the number of crimes, considerably diminished
that of the smaller ones, and rendered those of an
ATROCIOUS NATURE VERY RARE."  This passage is extracted
from the introduction to a code which he gave to his
people in the year 1786: four years afterwards, he was
called to the empire, and the further course of his noble
experiment was interrupted. How far the old system
was re-established, I am not accurately informed, but
some travellers represent, that the new state of things
forms a contrast very much in favour of the Leopold
code. These instances, I think, turn the scale of argument
as it applies to the authority of example; if we can rely
on that of Tuscany (and it seems perfectly well authenticated), it proves the inefficiency of capital punishments,
in great as well as smaller offences, and it is of more
weight than the united practice of all the nations of the
world where the punishment is retained, but where it
has never been found effectual to repress the prevalence
of crimes.
The third and last argument I have heard urged, is
nearly allied to the second; it is, the danger to be
apprehended from innovation. I confess, I always listen
to this objection with some degree of suspicion. That
men who owe their rank, their privileges, their emoluments, to abuses and impositions, originating in the
darkness of antiquity, and consecrated by time; that
such men should preach the danger of innovations, I can
well conceive; the wonder is, that they can find others
weak and credulous enough to believe them.  But in a
country where these abuses do not exist; in a country
whose admirable system of government is founded wholly
on innovation, where there is no antiquity to create a
false veneration for abuses, and no apparent interest to
perpetuate them; in such a country, this argument will
have little force against the strong reasons which assail
it.  Let those, however, who honestly entertain this




5 8                 REPORT ON
doubt, reflect that, most fortunately for themselves and
for their posterity, they live in an age of advancement:
not an art, not a science, that has not in our day made
rapid progress towards perfection.  The one of which we
now speak has received, and is daily acquiring, improvement; how long is it since torture was abolished? Since
judges were made independent? Since personal liberty
was secured, and religious persecution forbidden? All these
were, in their time, innovations as bold at least as the one
now proposed. The true use of this objection, and there
I confess it has force, is to prevent any hazardous experiment, or the introduction of any change that is not
strongly recommended by reason. I desire no other test
for the one that is now under discussion, but I respectfully urge that it would be unwise to reject it, merely
because it is untried, if we are convinced it will be beneficial. Should our expectations be disappointed, no
extensive evil can be done; the remedy is always in our
power. Although an experiment, it is not a hazardous
one, and the only inquiry seems to be, whether the
arguments and facts stated in its favour are sufficiently
strong to justify us in making it. Indeed, it appears to
me that the reasoning might, with some propriety, be
retorted against those who use it, by saying, "All punishments are but experiments to discover what will best prevent crimes; your favourite one of death has been fully
tried. By your own account, all nations, since the first
institution of society, have practised it, but you yourselves must acknowledge, without success. All we ask,
then, is that you abandon an experiment which has for
five or six thousand years been progressing under all the
variety of forms which cruel ingenuity could invent; and
which in all ages, under all governments, has been found
wanting. You have been obliged reluctantly to confess
that it is inefficient, and to abandon it in minor offences;
what charm has it then which makes you cling to it in
those of a graver cast? You have made your experiment;
it was attended in its operation with an incalculable waste
of human life, a deplorable degradation of human intel



THE PLAN OF A PENAL CODE.          59
lect; it was found often fatal to the innocent, and it very
frequently permitted the guilty to escape. Nor can you
complain of any unseasonable interference with your plan
that may account for its failure: during the centuries
that your system has been in operation, humanity and
justice have never interrupted its course; you went on in
the work of destruction, always seeing an increase of
crime, and always supposing that increased severity was
the only remedy to suppress it: the mere forfeiture of
life was too mild; tortures were superadded, which nothing but the intelligence of a fiend could invent, to prolong its duration and increase its torments; yet there was
no diminution of crime; and it never occurred to you,
that mildness might accomplish that which could not be
effected by severity." This great truth revealed itself to
philosophers, who imparted it to the people; the strength
of popular opinion at length forced it upon kings, and
the work of reformation, in spite of the cry against
novelty, began. It has been progressive. Why should
it stop, when every argument, every fact, promises its
complete success? We could not concur in the early
stages of this reformation; perhaps the credit may be
reserved to us of completing it; and I therefore make no
apology to the general assembly for having so long occupied them with this discussion. In imposing so important
a change, it was necessary to state the prominent reasons
which induced me to think it necessary; many more have
weighed upon my mind, and on reviewing these, I feel
with humility and regret how feebly they are urged.
The nature of the subject alone will, however, create an
interest sufficient to promote inquiry, and humanity will
suggest arguments which I have not had sagacity to discover or the talent to enforce.
Having stated the reasons which induced me to discard
all the different punishments.which have been reviewed,
I proceed to a short discussion of those which have been
adopted. These arePecuniary fines; degradation from office; simple imprisonment; temporary suspension of civil rights; per



-60                  REPORT ON
manent deprivation of civil rights; imprisonment at hard
labour; solitary confinement during certain intervals of
the time of imprisonment, to be determined in the
sentence.
The advantage of this scale of punishment is, that it is
divisible almost to infinity; that there is no offence,
however slight, for which it does not afford an appropriate corrective; and none, however atrocious, for which,
by cumulating its different degrees, an adequate punishment cannot be found.
When to these are added the regulations which are
made in certain cases, as to the nature of food and other
comforts, during the term of punishment, it has, in an
almost perfect degree, the essential quality of being capable of apportionment, not only to any species of offence,
but to every offender.  Sex, age, habits, constitution,
every circumstance which ought to determine the exercise
of discretionary power, may have its proper weight.
Reformation of the criminal may reasonably be expected.
He is effectually restrained from a repetition of his
crime.
A permanent and striking example is constantly operating to deter others.
The punishment being mild, public feeling will never
enlist the passions of the people in opposition to the law.
The same cause will ensure a rigid performance of
their duty by public officers.
Jurors, from a false compassion, will seldom acquit the
guilty; and if by chance or prejudice they should convict
the innocent, their error or fault is not as in the cases of
infliction of stripes-permanent stigmas, or death-without the reach of redress.
These are advantages which render the penitentiary
system decidedly superior to any other.
To detail the mode in which these different punishments
are composed and applied to the different offences, would
-be to repeat the provisions of the whole book, which
cannot be expected from the nature of this report; enough,




THE PLAN OF A PENAL CODE.            61
and I fear more than enough, has been said on this
division of the work.
I proceed to the plan of the fourth book, which, as we
have seen, is intended to give rules of practice in all
criminal proceedings.
It regulates the mode in which complaints and accusations are to be made; designates the proper persons to
receive them, and directs their duty in conducting the
examination; taking the evidence on the complaint, and
ordering the arrest; prescribes the form of warrants;
and designates precisely the cases where arrests may be
made without them. It prescribes minutely the duties,
and defines the authority, as well of officers as of individuals, who assist them in making arrests.
It regulates the mode of conducting the examination,
and the manner of making commitments, so as to avoid
the frequent escapes of the guilty from the former defective practice on this head.
The manner in which the person is to be treated,
during his confinement, is minutely detailed; provisions
are introduced to prevent or punish all abuses of
authority in those who arrest or have charge of the
prisoner.
Rules are laid down for directing the discretion of the
magistrate, and ascertaining his duties in admitting to bail.
The manner in which accusations, and the evidence to
support them, are to be brought before the proper court,
is distinctly described.
Rules are presented for the organization and mode of
conducting business before grand juries. Their duties
are defined, as are those of the public prosecutor, in
presenting indictments before them.
The cases are distinguished which are to be prosecuted
by indictment, from those in which information may be
filed.
Rules are laid down for drawing acts of accusation, so
as to secure a proper degree of certainty in the allegation
of the offence, but to prevent the escape of the guilty
from formal defects.




46                  REPORT 6N
The mode of making the arraignment; the manner of
pleading; the rules for conducting the trial; the duties
of the judge; of the advocate for the accused, and of the
public prosecutor, in relation to it, are minutely marked
out.
Regulations are made for summoning, swearing, and
challenging jurors, and for their government on the
trial, and on the delivery of the verdict.
Directions are given for summoning and securing the
attendance of witnesses.
The causes are designated for which judgments may
be arrested and new trials granted, and all the proceedings subsequent to the verdict are provided for.
A chapter is dedicated to the regulation of the manner
in which search warrants are to be granted and executed,
and another to the designation of the cases in which
security may be required against the commission of
apprehended offences. Contempts are defined, and the
mode of trying and punishing them is marked out.
The last chapter of this book contains a system of
proceeding on writs of habeas corpus.
This chapter will be the first act of legislation in our
state on this subject; important enough, it would seem,
to have sooner engaged our attention. This writ was
known in a remote period of the English law, but it was
a precept without a sanction, and therefore totally inefficient until the statute passed in the 31st year of
Charles II. gave it force and efficacy, and made it a
feature in their jurisprudence, of which any nation
might be proud, and which all ought to imitate or adopt.
The mechanism of this admirable contrivance for securing personal liberty is so simple, its effects are so decisive,
that we are led to wonder why it was not sooner put in
operation, especially in a nation which at so early a
period made it a stipulation with their king, that "no
freeman should be imprisoned but by the law of the
land." Indeed the writ itself was known in the Roman
law by the name of the interdict de homine libero exhibendo; but it was applicable only to the case of a




TEi PILAN OF A PENAL CODE.          63
freeman claimed as a slave; and we do not find that
even in that case there were any provisions to enforce its
execution: on the contrary, there was one which permitted any person to refuse obedience, who chose rather
to pay for the man, estimating his value as if he was a
slave. In no stage of its history, therefore, was this
writ of any importance until the spirit of liberty, nearly
extinguished under the energetic despotism of the
Thdors, rose superior to the weakness of the Stuarts,
and inspired the declaration of those principles of personal and political rights on which our republics are
chiefly founded. One of the most important measures
which this spirit suggested, was the habeas corpus act;
it directs the manner in which the writ is to issue;
imposes penalties for disobedience to it, and makes a
number of salutary provisions to prevent delays and
abuses in criminal proceedings.  In all the Atlantic
states, this statute was a part of the law by which they
were governed at the time they became independent;
and it was either expressly or impliedly adopted with
the whole body of their municipal laws.  In those
states, therefore, nothing more was necessary than to
guard against its suspension by a constitutional clause.
But here the case was different; the common law of
England was not in force here, still less were its statutes.
Neither could form part of our law, unless specially
re-enacted.  Yet the framers of our constitution, not
attending to this difference, contented themselves with
transcribing from the constitutions of other states, the
provision that "the privilege of the writ of habeas
corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it."
But no law had before, or has been since passed, defining
what the writ of habeas corpus was, or directing the
manner in which it was to be obtained, how it was to be
executed, what was to be its effect, or what the penalty
of disobeying it. If the writ alone be introduced without
the provisions for enforcing it, it could be of as little
use here as it was in England before the statute of




64.                  REPORT ON
Charles II.; if the statute be introduced, do we stop
at that of Charles? or are those of 16 George I. and 38
of George III. re-enacted by this laconic legislation?
If either of them are, they involve, as applied to us,
great absurdities: for they contain many provisions
which are purely local, all of them referring to courts
and to magistrates which do not exist under our laws;
and impose penalties which are not recoverable here;
and yet on which the whole efficacy of the act depends.
So that whatever construction we put on this clause in
our constitution, it must be confessed, that without some
statute to define and enforce the great privilege of which
it declares we shall not be deprived, the provision can be
of little use. Hitherto the necessity for this remedy
has been so strongly felt, that judges have not scrupulously examined their right to afford it; and even when
improperly granted, so strongly is it supported by public
opinion, that parties, though they have sometimes evaded
its operation, have never thought proper to question its
legality. It has held its authority, therefore, by the
moral sense of the people, exerting its influence in support of an institution which they have been taught fromn
their infancy to venerate and admire, rather than by the
constraint of law.  But times may come  in the natural
progress of human affairs must come -when public
opinion will have less force, and without the aid of law
for its support, will prove a feeble barrier against encroachment.
The offences against personal liberty, which are most
dangerous, are those that are committed for political
purposes, and as the means of silencing opposition to
unconstitutional and revolutionary measures. All the
energies of the law, armed with its strongest sanctions,
and directed by the most efficient measures to secure its
execution, then become necessary. The magnitude of
the evil, therefore, concurring with the probability of its
occurrence, calls for the attention of the legislature to
this important subject.  In  examining the different
enactments of this justly celebrated statute, every friend




THE PLAN OF A PENAL CODE.          65
of freedom must be grateful to its authors for the extensive, and it is devoutly to be hoped, the lasting benefit
they have conferred on mankind. Ten millions of freemen have already consecrated it among their fundamental
rights, and the rising republics of the new world will not
fail to adopt so precious an institution, when they review
and finally establish their constitutional compacts.
This is the greatest glory a wise nation can desire; to
see its principles recognized; its institutions adopted;
its laws copied, not only by men speaking the same
language, and bred in a similarity of manners, but translated into different languages, adapting themselves to
different habits; incorporated in different codes, and in
all, acknowledged as the first of blessings. And the
trial of a cause, by an independent jury, on the banks of
the La Plata or the Oroonook; or the writ of habeas
corpus adopted by a representative assembly in Mexico
and Peru, ought to afford more satisfaction to an Englishman, who loves the honour of his country, than the most
splendid triumph of her arms. We must not, however,
suffer our admiration of any institution to blind us to its
faults or prevent us, when we are about to adopt it, from
scrutinizing severely all its provisions, and carefully inquiring whether in its operation, defects have not been
discovered, which a prudent attention might amend. In
examining the English statute with this view, some
important omissions have been observed: and in the
project presented to you, an attempt has been made to
remedy them. Some of the most important ought to be
enumerated.
1. The great object of this writ; that which constitutes its chief excellence, I may say its only use, is the
promptitude and efficacy with which it acts. To borrow
a phrase from another branch of jurisprudence, it is a
writ for " specific performance," or it is nothing. In all
civilized countries, there are actions given for injuries to
personal liberty: but no nation, until England set the
example, provided any means for the immediate cessation
of the evil, This law enforces it by attachment, fines,




66                  REPORT OS
and penalties; in most cases, these are effectual: but
there are circumstances in which the party injured would
obtain no relief, and the offender would escape punishment, notwithstanding the provisions of the statute. A
person may be unlawfully arrested, and forcibly embarked, to be conveyed out of the country; the writ of
habeas corpus may issue; it may even be served in time,
but if the party to whom it is directed choose to make
an insufficient return, no other process can issue until
that return has been received, debated, and determined
to be insufficient; and then, it is not a compulsory process, but a penal one, which is awarded; not giving
liberty to the prisoner, but punishing the party for his
disobedience, who detains him; in the mean time the
sufferer may be conveyed out of the kingdom, or some
other irreparable injury may be inflicted on him. This
is a case which must probably have often occurred in
England, by abuses under their press-warrants; by
military encroachments, and for purposes of private vengeance or public oppression. Recent as has been the
establishment of our government, an outrageous and
well-known example of this abuse took place here; an
evasive return was made and repeated, and while the
court was occupied in determining its validity, a number
of citizens were carried out of the state by a military
officer, on a groundless charge of political crimes.
To prevent the occurrence of an evil of this kind, an
article has been inserted, directing, whenever a case is
made out to justify the issuing of this writ, accompanied
by proof, that deportation, or any other irremediable
injury is apprehended; or whenever the writ is disobeyed, that the magistrate shall, instead of the habeas
corpus, issue his warrant to bring the prisoner, and the
party in whose custody he is held, before him, that the
one may be released and the other committed for trial,
in all cases in which those steps may be required by
law.
2. Under the English law, the return is taken for true,
and the only remedy is an action against the person who




THE PLAN OF A PENAL CODE.           67
makes a false return; a doctrine utterly subversive of the
true intent of the act, and which, in many cases, has
rendered it nugatory. This doctrine was established on
a reference to the twelve judges, by the house of lords,
in 1757, and was enforced in the case of American seamen impressed on board of English vessels; the captain
returned, that they had voluntarily enlisted, and without
any other evidence, they were remanded to their slavery,
and told, that if they survived the war, and could find
any one to bring an action for a false return, on proving
it, they might obtain relief. This glaring defect is removed by the law presented to you; and the mode is
prescribed for examining into the truth of a return when
it is controverted.
3. The judges in the case alluded to, determined
unanimously, that the provisions made for awarding and
returning writs of habeas corpus immediately, do not
extend to any case but those of a criminal or supposed
criminal nature. Mr. Justice Bathurst, it is true, adds
to his opinion, that although the statute did not extend
to other cases, yet the justices of the king's bench had,
in favour of liberty, extended the same relief to all
cases.
To give full effect to this remedy, it is proposed expressly to extend it to every case of illegal imprisonment
and restraint.
4. By the English practice, when a prisoner is brought
tup on habeas corpus, if the commitment be informal, he
is discharged, although sufficient evidence may exist to
justify his detention for trial. The plan proposes a
remedy for this evil, by obliging the officer who brings
up the prisoner, to produce the evidence on which he
was committed, and directing the judge before whom
the writ is returned, to re-commit him if the evidence
warrant it.
As the whole of this chapter is submitted, it is not
necessary to notice any other of the omissions which have
been supplied, or the defects which it has been attempted
to remedy. A strong impression of the utility of this




6J8                DiEPORT ON
great writ, has rendered me particularly desirous to increase the facility of procuring it; to enlarge the sphere
of its relief; to give an adequate sanction to each of the
provisions that are enacted; to impress upon the people
the utility of preserving it and the danger of suffering it
to be violated, and to show the value we place on this
and other institutions of freedom, not by suffering them
to remain imperfect from a blind reverence for their
antiquity, but by studying to improve, or, if possible, to
perfect them, and by leaving to our children, not only
unimpaired, but augmented, those privileges bequeathed
to us by the wisdom and patriotism of our fathers.
The great objects in the execution of this division of
the work, have been to protect the innocent from illfounded prosecutions, and even the guilty from vexation,
in the manner of conducting those which were necessary
to ascertain their guilt. But at the same time, to insure
the exact execution of the laws, and as far as possible to
destroy the effect of those devices which professional
ingenuity has so frequently used to procure the escape
of the guilty. Some new provisions have been introduced
to effect these objects, but where they could be obtained
without innovation, none have been proposed. In those
cases my endeavours have been confined to the arrangement of the law applicable to the different divisions,
under its proper heads; and to giving precise and intelligible language to the rules of procedure. Even a slight
notice of all the points in which changes or modifications
of the present law have been suggested, would extend
this report, already too long, to an inconvenient size. It
may not be amiss, however, to mention a prohibition of
those charges, which the judge frequently uses as the
mieans of diffiusing his political tenets, displaying his eloquence, and sometimes gratifying his passions; and of
those presentmetits of the same nature, by which the
jury recommends candidates to office, denounce public
measures, or eulogize the virtues of men in power; such
proceedings were thought beneath the dignity of the
magistrate, and inconsistent with the sanctity of that




THE PLAN OF A PENAL CODE.            69
body, whose functions of public accusers, and guardians
of the liberty and reputation of their fellow-citizens,
require calm investigation, undisturbed by intemperate
discussions. If an ordinary court of justice be properly
called the temple of that high attribute of the deity, we
may, without too far extending the metaphor, term the
tribunal of criminal jurisdiction, a shrine in that temple;
the holy of holies, into which impure or unworthy passion
should find no admitta.nce, and where no one ought to
officiate until he has put off the habits of ordinary life,
and assumed, with the holy robes of his function, that
purity of intention, that ardent worship of truth, so inconsistent with the low pursuits of interest, the views of
ambition, or the vanity of false talent. Party spirit unfortunately will, in some degree, influence every other
department; from the nature of our government it must
exist, but it will do no material injury, while it is felt in
the legislative, or even in the executive branches; but if
it once find admittance to the sanctuary of justice, we
may be assured, that the vitals of our political constitu.
tion are affected, and I can imagine no better means of
facilitating this corruption, than permitting your judges
to make political harangues to a jury, who reply by a
party presentment.
Another article applicable to the trial, restricts the
charge of the judge to an opinion of the law, and to the
repetition of the evidence, only when required by any one
of the jury: the practice of repeating all the testimony
from notes, always (from the nature of things) imperfectly, not seldom inaccurately, and sometimes carelessly,
taken, has a double disadvantage; it makes the jurors,
who rely more on the judge's notes than their own
memory, inattentive to the evidence; and it gives them
an imperfect copy of that, which the nature of the trial
by jury requires they should record in their own minds.
Forced to rely upon themselves, the necessity will quicken
their attention, and it will be only when they disagree in
their recollection, that recourse will be had to the notes
of the judge. There is also another and more cogent




70                  REPORT ON
reason for the restriction. Judges are generally men
who have grown old in the practice at the bar. With
the knowledge which this experience gives, they also
acquire a habit, very difficult to be shaken off, of taking
a side in every question that they hear debated, and
when the mind is once enlisted, their passions, prejudices,
and professional ingenuity are always arrayed on the
same side, and furnish arms for the contest. Neutrality
cannot, under these circumstances, be expected; but the
law should limit, as much as possible, the evil that this
almost inevitable state of things must produce. In the
theory of our law, judges are the counsel for the accused,
in practice they are, with a few honourable exceptions,
his most virulent prosecutors. The true principles of
criminal jurisprudence require that they should be neither.
Perfect impartiality is incompatible with these duties.
A good judge should have no wish that the guilty should
escape, or that the innocent should suffer; no false pity,
no undue severity should bias the unshaken rectitude of
his judgment; calm in deliberation, firm in resolve,
patient in investigating the truth, tenacious of it when
discovered; he should join urbanity of manners to dignity
of demeanour, and an integrity above suspicion, to learning and talent; such a judge is what, according to the
true structure of our courts, he ought to be-the protector, not the advocate of the accused; his judge, not
his accuser; and while executing these functions, he is
the organ by which the sacred will of the law is pronounced. Uttered by such a voice, it will be heard,
respected, felt, obeyed; but impose on him the task of
argument, of debate; degrade him from the bench to the
bar; suffer him to overpower the accused with his influence, or to enter the lists with his advocate, to carry on
the contest of sophisms, of angry arguments, of tart
replies, and all the wordy war of forensic debate; suffer
him to do this, and his dignity is lost; his decrees are no
longer considered as the oracles of the law; they are submitted to, but not respected; and even the triumph of
his eloquence or ingenuity, in the conviction of the




THE PLAN OF A PENAL CODE.            71
accused, must be lessened by the suspicion, that it has
owed its success to official influence, and the privilege of
arguing without reply. For these reasons the judge is
forbidden to express any opinion on the facts which are
alleged in evidence, much less to address any argument
to the jury; but his functions are confined to expounding
the law, and stating the points of evidence on which the
recollection of the members of the jury may differ.
I pass over other alterations of less importance, and
proceed to the consideration of the fifth book.
This, as we have seen in the plan, is devoted to the
rules of evidence as applicable to criminal law. In the
execution of this part of the work, general principles will
be first laid down, applicable to all cases of criminal
inquiry, from its incipient to its final stage; they will be
such only as have received the sanction of the learned
and the wise, or such as can be supported by the clearest
demonstration of their utility and truth. The evidence
necessary to justify commitments, indictments, and convictions for each offence specified in the third book, as
well as that which may be admitted in the defence, will
be detailed under separate heads, and such an arrangement
will be studied as to make this part of the work easily
comprehended, and remembered without difficulty.
It is obvious, from the nature of this division of the
subject, that illustrations of the rules it contains cannot
be given without greatly exceeding the limits of an ordinary
report. It may be proper, however, under this head, to
notice that an attempt is made to enforce the sanction
and add to the solemnity of oaths. From the careless
and often unintelligible manner in which they are administered, it seems an idle ceremony rather than a
sacred promise, accompanied by a renunciation of the
blessings of the deity in case it should be broken. Rules
are framed on this subject, which it is supposed may, in
some measure, correct the evil, and make witnesses more
cautious and circumspect in their testimony, by impressing upon the mind a proper sense of the serious consequences of its violation; If this impression should be




72                   REPORT ON
insufficient to prevent deliberate perjury, it will at least restrainthemoreprevalent evil of those aberrations from truth
which are caused by exaggeration, carelessness, or passion.
The sixth and last division of the work, is to contain
rules for the establishment and government of the public
prisons; comprehending those intended for detention
previous to trial; for simple confinement, and for correctional imprisonment at hard labour, or in solitude.
Upon these rules, and the proper execution of them,
depend the success of the whole system. But it will be
useless to make rules, because impossible to execute them,
unless the edifice to be prepared for this purpose be on a
scale sufficiently extensive to permit the proper classification, the separate employment and proper seclusion of the
different offenders.  Without these, we can neither
produce reformation nor hope for any effect from example.
And yet, because it produces neither, we find fault with
the system, when we should arraign only our want of
attention to its principle. Vice is more infectious than
disease; many maladies of the body are not communicated even by contact, but there is no vice that affects the
mind, which is not imparted by constant association; and
it would be more reasonable to put a man in a pest-house,
to cure him of a headache, than to confine a young
offender in a penitentiary, organized on the ordinary plan,
in order to effect his reformation.  Considering this
interior arrangement as essential to the success of the
whole plan, it was deemed improper to leave it to the
discretion of the governors or warden; but by means of
precise and somewhat minute regulations, to place the
discipline of the prison on a basis that should not vary
according to the different theories of those who are to
enforce it, taking care, however, to allow a reasonable
discretion in cases where considerations of humanity
require it.
In order to frame these regulations to advantage, it
would be very advisable to obtain more information than
we now possess, of the practical operation of those which
have been tried in the other states.




THE PLAN OF A PENAL CODE.            73
For this purpose I intend, if possible, to devote a few
months of the summer to a personal examination of the
different institutions of the kind in the Atlantic states;
but if my circumstances should not permit me to execute
this plan, I shall renew the efforts I have already made to
procure the information which the different returns and
reports can give.
Every system having reformation for its principal, or
even incidental, object, is imperfect, if it do not contain a
regular and permanent provision for giving education to
the young offenders, and moral and religious instruction
to all.
Lessons of this nature, inculcated by men of piety and
benevolence; enforced by a life of temperance and labour,
and not counteracted by any evil associations, I firmly
believe, will make many a discharged convict a more
worthy member of society than some who have never
committed any offence of sufficient magnitude to incur
the same discipline.  But reformation is not enough;
although sincere, it will not be lasting, if the distrust of
society shall drive the repentant sinner from its bosom,
deny him the means of subsistence, and force him to seek
it in a new association with his former companions in
guilt. To avoid this consequence, means must be found
to test by a proper interval of probation the sincerity of
his reformation; to give him an opportunity of regaining
confidence, by acts of gradual intercourse with the public,
and, after repeated trials, if it be found that he can withstand temptation, to assign him a place in society, which
will enable him to subsist without reproach.
This part of the plan will be difficult of execution, but
it is not deemed impracticable, and it will be facilitated
and enforced by increased severity for a repetition of
offences, as well in the duration of punishment as in the
increase of privations while it lasts. Should the regulations which I suggest for this purpose be adopted, and be
found efficient, it will complete the system which substitutes amendatory to vindictive punishments. A reformation in penal jurisprudence which reflects higher honour




741                   REPORT ON
on modern times, than the greatest discoveries they have
produced in arts, literature, or science.
This is the plan of the work, and these are the principles on which it is founded; if after examining them,
it should be perceived that they are inconsistent with the
views of the legislature, or that the execution falls short
of their expectations, the evil is still within the reach of
such remedy as their wisdom may suggest.
From such parts of the code as are in the state of
greatest forwardness, I have selected the second book,
and the last chapter of the fourth, as specimens of the
execution.* The one being chiefly an enunciation of
general principles, and the other necessarily confined to
matters of practical detail, the general assembly can the
better judge, whether a proper attention to sound theory
has been combined with efficient practical details; and
whether the great object I have had in view, of rendering
every rule intelligible, though concise, has in a reasonable
degree been attained.
Some parts of the third book are prepared, but the
whole of this division is still in an unfinished state. The
fourth is nearly complete.  The fifth cannot, without
great inconvenience, be put into form until the crimes to
which the evidence is to apply are defined and definitively
classed; this book must, therefore, necessarily be unfinished until the completion of the third; and the want
of that information, which I hope to obtain by a personal
inspection of the prisons, has unavoidably delayed what
I have to add to the sixth and last book.
I have only to add, on this subject, that from the progress already made, I hope that the whole system will be
presented at the next session. And I submit to the
legislature, whether it would not be proper to direct,
that when finished it shall be printed for the inspection
of the members.
* This report was made before the completion of the " System of Penal
Law," the publication of which now renders the insertion of these specimens unnecessary.




THE PLAN OF A PENAL CODE.          75
This report is intended to apprize the representatives
of the people what changes are proposed to be made
in their criminal jurisprudence; to inform them  why
these changes are deemed necessary; to lay before them
a plan of the whole work; to announce the principles on
which is is established; and by the exhibition of a part,
to show in what manner it may be reasonably expected
that the whole will be executed.
In performing this duty, the line traced by the law
under which I was appointed, has been scrupulously
adhered to. In its execution, I claim no other merit
than that of diligence, and a most conscientious desire to
perform it in such a manner as will best reconcile
humanity with justice, and the great interests of freedom
with both.
The representatives of a free people, although they
may do nothing to forfeit the confidence of their constituents, cannot always expect to retain the power of
serving them. A spirit of change is inherent in our
government; it gives it energy, and is even necessary to
its existence. We appear in public life; perform or
neglect the duties assigned to us; and then, pushed off
the stage by younger, more active, or more popular
candidates, we return to the mass of our fellow-citizens;
in common with them, to suffer the evils or enjoy the
benefits of the measures we have adopted. It is not
always that, in the brief space allotted to us for the
performance of our functions, we have an opportunity of
making it an epoch in the annals of our country, by
institutions, with which a grateful posterity will identify
the names of those by whose patriotic labours they were
established. This rare occasion now presents itself for
your acceptance.
If the work which your wisdom has directed, and which
your sound judgment, experience, and care will modify
and correct, should effect the object of giving to your
country a penal code, founded on true principles-concise,
correct, humane, easily understood, guarding with the
same scrupulous care the rights of the poorest citizen




76     REPORT ON THE PLAN OF A PENAL CODE.
and of the most influential member of society; enforcing
firmly, not harshly, a strict obedience to the laws;
repressing with an even hand the abuses of office and the
license of insubordination; protecting the good, restraining, punishing, and reforming the wicked; arraying the
best feelings and most powerful passions, as well as the
understanding on the side of the law; making disobedience unwise and unattractive, as well as dangerous;
arming all your institutions with public opinion, and
directing its irresistible force against vices and crimes;
rendering your judges venerated as the oracles of justice,
and your courts respected as its sanctuary. Should this be
the result, few public bodies can boast a fairer claim than
you will then have to the approbation of their constituents
and the gratitude of posterity. For you will have rendered an essential service, not only to your own country,
by securing its internal peace, and establishing its reputation for wisdom and justice, but to the other states, by
giving them an useful and honourable example, and to
the whole world, by demonstrating the ease and safety
with which abuses are corrected and improvements
introduced under a free government, and exemplifying its
superiority by this proof of the rapid progress it has
enabled you to make in the science of legislation, during
the few years you have enjoyed it. And the grateful
prayers of the innocent whom you will have saved, of the
guilty you will have reformed, and of the whole community whose feelings will no longer be lacerated by
public exhibitions of suffering and of death, will combine,
with your own consciousness of rectitude, in drawing
down a blessing on your lives, and diffusing a glow of
happiness over that hour, when the remembrance of one
measure effected for the interests of humanity or the permanent good of our country, will be of more value than
all the fleeting and unsatisfactory recollections of success
in the pursuits of fortune or ambition.
All which is respectfully submitted.
EDWARD LIVINGSTON.




INTRODUCTORY REPORT
TO
THE SYSTEM OF PENAL LAW,
PREPARED FOR
THE STATE OF LOUISIANA,








INTRODUCTORY REPORT
TO
THE SYSTEM OF PENAL LAW,
PREPARED FOR
THE STATE OF LOUISIANA.
I LAY before the general assembly, with unaffected diffidence, the system which they directed me to prepare.
This feeling, however, does not arise from any apprehension that the work has not been framed according to the
spirit of the instructions that were given for its execution;
they have been constantly before me. Nor have I entertained any doubt of the correctness of the principles on
which those instructions were founded; on the contrary,
every new view that unfolded itself, as I gave them the
form of a practical precept, convinced me of their wisdom
and utility. But in strictly following good rules according to the best of my judgment, that judgment must
frequently have erred. To apply general principles to
the numerous subdivisions of criminal jurisprudence, so
that the same spirit might pervade its different branches
of sanction, procedure, evidence, and discipline, presented
a task which nothing but the highest presumption could
hope to perform without falling into many errors. Of my
own fallibility no one can be more sensible than I am, and
no one could have taken greater precautions to correct it.
Not a provision has been made, without the deepest
reflection upon its consequences. Not a line has been
written, that was not sent to every quarter of the union




80           INTRODUCTORY REPORT TO
in search of anmendment. Not a suggestion has been
offered, that has not been adopted, without pride of
opinion, when it brought conviction to my mind; and
the long list of corrections, at the "end of the printed
copies, attest how slight my attachment has been to preconceived ideas, or to the language in which they were
expressed, when either my own reflection, or the advice
of others, convinced me that they might be amended.
The codes, as they are now presented, have been produced by the exercise of my best faculties, faithfully and
laboriously employed, under the direction of a religious
desire to perform the high duty entrusted to me, so as, in
some degree, to realize the great views of those by whom
I was appointed.
Cheered and encouraged in the very outset of the
work by the approbation which the general assembly
bestowed on the plan and the specimens which accompanied it, I proceeded with alacrity in the execution of
my task; and in its progress, had the satisfaction to
receive testimonials equally calculated to stimulate my
exertion. Some of them I have obtained leave to communicate with this report. They all concur in the utility
of the projected reform. Some speak in the highest style
of encomium on the honour the state has acquired by
leading the way in effecting it; and when the high terms,
in which the friendship of some, and the politeness of
others, have induced them to speak of the execution of
the work, are reduced to their just value, most of them
contain reflections that will be found of great use in the
discussion of the codes.
Well aware of the difficulties of my task, but feeling a
conviction that they were not insurmountable, I undertook it with so much confidence as was necessary to
sustain me in its execution; but with that distrust of my
own powers, which made me submit to the test of long
reflection and severe scrutiny every principle I laid down
and every provision intended to give it effect. I made
these my leading rules-to adopt no theory, by whatever
specious argument supported, until I should be convinced




THE SYSTEM OF PENAL LAW.           81
of its practical utility; diligently to seek for information,
but to admit nothing upon the mere authority of high
names; to make no unnecessary innovation, but boldly
to propose every change I should think practicable and
useful. This process unavoidably consumed much time;
but, by assiduous labour, in little more than two years
after my plan had received the sanction of your predecessors, I had completed the work. Its destruction in
the autumn of the year 1824 was communicated to the
general assembly, and produced a resolution giving me
another year to renew it. This was to be done entirely
from recollection, for not a written vestige of my former
labour remained; and the task of recomposition, always
irksome, was interrupted and rendered more difficult by
the interference of engagements, which, supposing my
undertaking finished, I had made for the ensuing year.
These circumstances, while they afford a reason, and perhaps an excuse for delay, will render negligent error more
unpardonable.
The enunciations of fact as well as of principle, contained in the law under which I have acted, and the
resolution approving of the plan which was prepared in
conformity with its provisions, might seem to preclude
the necessity of saying anything to show that a reform in
*our criminal jurisprudence was called for, or that the
directions contained in the law were proper in order to
effect it. But when it is considered, that the general
assembly has been twice changed since those acts were
passed, and that all the enemies of reformation have been
industriously at work during that period in urging arguments against the contemplated change, it may not be
deemed, I hope, improper to attempt, in this report, a
refutation of arguments and a disproval of allegations
calculated to mislead, and to perpetuate the degrading
state of subjection to unwritten, and therefore necessarily
unknown laws.
The law of 1820 recites, " that it is of primary importance in every well regulated state, that the code of
criminal law should be founded on one principle —the
F




82            INTRODUCTORY REPORT TO
prevention of crime; that all offences should be clearly
and explicitly defined in language generally understood;
that punishments should be proportioned to offences;
that the rules of evidence should be ascertained as
applicable to each offence; that the mode of procedure
should be simple, and the duty of magistrates, executive
officers, and individuals assisting them, should be pointed
out by law;. AND THAT THE SYSTEM OF CRIMINAL LAW, BY
WHICH THIS STATE IS NOW GOVERNED, IS DEFECTIVE IN MANY
OR ALL OF THE POINTS ABOVE ENUMERATED." Two years
afterwards another general assembly, with the approbation of the governor, resolved, " that they approve of the
plan proposed by Edward Livingston, in his report made
in pursuance of an act, entitled, an'act relative to the
criminal laws of this state,' and earnestly solicit Mr.
Livingston to prosecute this work according to the said
report;" and thereby added their sanction to a development of the same enunciations contained in the preamble
to the code which was submitted for their consideration.
This will be frequently referred to, and I therefore quote
it at length:
"No act of legislation can be, or ought to be, immutable.  Changes are required by the alteration of
circumstances; amendments, by the imperfection of all
human institutions; but laws ought never to be changed
without great deliberation, and a due consideration as
well of the reasons on which they were founded, as of
the circumstances under which they were enacted. It is
therefore proper, in the formation of new laws, to state
clearly the motives for making them, and the principles
by which the framers were governed in their enactment.
Without the knowledge of these, future legislators cannot perform the task of amendment, and there can be
neither consistency in legislation, nor uniformity in the
interpretation of laws.
" For these reasons the general assembly of the state
of Louisiana declare, that their objects in establishing
the following code are" To remove doubts relative to the authority of any




THE SYSTEM OF PENAL LAW.           83
parts of the penal law of the different nations by which
this state, before its independence, was governed.
"To embody into one law and to arrange into system
such of the various prohibitions enacted by different
statutes as are proper to be retained in the penal code.
"To include in the class of offences, acts injurious to
the state and its inhabitants, which are not forbidden by
law.
"To abrogate the reference, which now exists, to a
foreign law for the definition of offences and the modes
of prosecuting them.
"To organize a connected system for the prevention
as well as for the prosecution and punishment of offences,
" To collect into written codes, and to express in plain
language, all the rules which it may be necessary to
establish, for the protection of the government of the
country, and the persons, property, condition, and reputation of individuals; the penalties and punishments
attached to a breach of those rules; the legal means of
preventing offences, and the forms of prosecuting them
when committed; the rules of evidence, by which the
truth of accusations are to be tested; and the duties of
executive and judicial officers, jurors, and individuals, in
preventing, prosecuting, and punishing offences: to the
end that no one need be ignorant of any branch of
criminal jurisprudence, which it concerns all to know.
" And to change the present penal laws in all those
points in which they contravene the following principles,
which the general assembly consider as fundamental
truths, and which they have made the basis of their
legislation on this subject, to wit:
"Vengeance is unknown to the law. The only object
of punishment is to prevent the commission of offences:
it should be calculated to operate"First, on the delinquent, so as by seclusion to
deprive him of the present means, and by habits of industry and temperance of any future desire, to repeat
the offence.
"Secondly, on the rest of the community, so as to




84            -INTRODUCTORY REPORT TO
deter them, by the example, from a like contravention
of the laws. No punishments greater than are necessary to effect these ends ought to be inflicted.
"No acts or omissions should be declared to be offences, but such as are injurious to the state, to societies
permitted by the laws, or to individuals.
"But penal laws should not be multiplied without
evident necessity; therefore acts, although injurious to
individuals or societies, should not be made liable to
public prosecution, when they may be sufficiently repressed by private suit.
"From the imperfection of all human institutions,
and the inevitable errors of those who manage them, it
sometimes happens that the innocent are condemned to
suffer the punishment due to the guilty. Punishments
should, therefore, be of such a nature that they may be
remitted, and, as far as possible, compensated, in cases
where the injustice of the sentence becomes apparent.
" Where guilt is ascertained, the punishment should
be speedily inflicted.
"- Penal laws should be written in plain language,
clearly and unequivocally expressed, that they may
neither be misunderstood nor perverted; they should
be so concise as to be remembered with ease, and all
technical phrases or words they contain, should be
clearly defined; they should be promulgated in such a
manner as to force a knowledge of their provisions upon
the people; to this end, they should not only be published, but taught in the schools; and publicly read on
stated occasions.
"The law should never command more than it can
enforce. Therefore, whenever from public opinion, or
any other cause, a penal law cannot be carried into execution, it should be repealed.
"The accused, in all cases, should be entitled to a
public trial, conducted by known rules, before impartial
judges, and an unbiassed jury; to a copy of the act of
accusation against him; to the delay necessary to prepare for his trial; to process to enforce the attendance




THE SYSTEM OF PENAL LAW.           85
of his own witnesses; and to an opportunity of seeing,
hearing, and examining those who are produced against
him; to the assistance of counsel for his defence; to
free communication with such counsel, if in confinement,
and to be bailed in all cases, except those particularly
specified by law.  No presumption of guilt, however
violent, can justify the infliction of any punishment
before conviction, or of any bodily restraint greater than
is necessary to prevent escape; and the nature and extent of this restraint should be determined by law.
" Perfect liberty should be secured of hearing and
publishing a true account of the proceedings of criminal
courts, limited only by such restrictions as morality and
decency require; and no restraint whatsoever should be
imposed on the free discussion of the official conduct of
the judges, and other ministers of justice, in this branch
of government.
" Such a system of procedure, in criminal cases, should
be established, as to be understood without long study;.
it should neither suffer the guilty to escape by formal
objections, nor involve the innocent in difficulties by
errors in pleading.
"For this purpose, amendments should be permitted
in all cases, where neither the accused nor the public prosecutor can be surprised.
" Those penal laws counteract their own effect, which,
through a mistaken lenity, give greater comforts to a
convict than those which he would probably have enjoyed
while at liberty.
"The power of pardoning should be only exercised in
cases of innocence discovered, or of certain and unequivocal reformation.' Provision should be made for preventing the execution of intended offences, whenever the design to
commit them is sufficiently apparent.
" The remote means of preventing offences do not form
the subject of penal laws. The general assembly will
provide them in their proper place. They are the diffiusion of knowledge, by the means of public education, and




8 6            iNTRODUCTORY REPORT TO
the promotion of industry, and consequently of ease and
happiness, among the people.
"Religion is a source of happiness here, and the foundation of our hopes of it hereafter; but its observance
can never, without the worst of oppression, form the subject of a penal code. All modes of belief, and all forms
of worship, are equal in the eye of the law; when they
interfere with no private or public rights, all are entitled
to equal protection in their exercise.
"Whatever may be the majority of the professors of
one religion or sect in the state, it is a persecution to
force any one to conform to any ceremonies, or to observe
any festival or day, appropriated to worship by the
members of a particular religious persuasion: this does
not exclude a general law, establishing civil festivals or
periodical cessations from labour for civil purposes unconnected with religious worship, or the appointment of particular days on which citizens of all persuasions should
join, each according to his own rites, in rendering thanks
to God for any signal blessing, or imploring his assistance
in any public calamity.
" The innocent should never be made to participate in
the punishment inflicted on the guilty; therefore, no
such effects should follow conviction, as to prevent the
heir from claiming an inheritance through, or from, the
person convicted. Still less should the feelings of nature
be converted into instruments of torture, by denouncing
punishment against the children, to secure the good conduct of the parent.
" Laws intended to suppress a temporary evil should
be limited to the probable time of its duration, or carefully repealed after the reason for enacting them has
ceased."
These different expressions of legislative opinion would
seem to preclude the necessity of any argument to show
the defects of our present system of penal law, or to
establish the truth of the principles upon which the proposed amendments are founded. But as I have taken
truth for the foundation of all my statements, utility for




THE SYSTEM OP PENAL LAW.            87
the sole object of my provisions, and reason alone as the
means of supporting my conclusions, I shall not take
shelter behind any authority; but shall endeavour, in
this report, to show that the legislative declaration of the
defective state of our penal law is founded in fact, and
that the principles they prescribed to remedy the evil
were founded in wisdom and practical truth. This will
be not only useful but necessary to the proper consideration of the reports, in which the attention of the legislature is called to the principal enactments in the different
codes offered for their consideration. For, without this
previous discussion, they cannot determine whether those
provisions remedy the existing evils, or whether they are
in unison with each other and with the sound doctrines
of penal jurisdiction on which they purport to rest. If
the proposed system  cannot be supported by reasons
showing that it is both practicable and useful, it ought
not to be adopted; but let no part of it be rejected on
the authority only of influential names; still less by the
affected doubts of interested, or the errors of sincere
prejudice.
In this report, then, I propose to show THE NECESSITY
OF A REFORM, FROM A VIEW OF THE ACTUAL STATE OF OUR
PENAL LAWS, and to answer the objections that have been
made to the establishment of a written system.
The objects of penal law are: to define offences, to
prevent their commission, and to designate and direct
the mode of inflicting the penalty when they are committed.  To effect these objects, there must be rules
established by legislative authority. Those rules must
be known; and, to be known, they must be promulgated.
But the rule can neither be made, nor be known, nor
promulgated, unless it be clothed in words. Are those
words to be oral or written? is the first question. A
strange one, it would seem, in our state of society, yet
seriously made; seriously answered in favour of traditional against written law-made and answered by
lawyers, by judges, by men whose situation gives influence, and whose opinions have weight. Such are the




88            INTRODUCTORY REPORT TO
advocates for retaining the reference to that part of the
English common law which forms a part of our criminal
jurisprudence. That part is not inconsiderable: it pervades the whole mass of our legislation on this subject:
and it is necessary to understand this, that we may know
how to value the argument which asserts that our
statutes, not the English common law, defines offences
and imposes the penalties. This is not the fact. The
groundwork of our penal law is the territorial statute of
1805.  It enumerates the offences and indicates the
penalties; but it does not define.  Theft, burglary,
murder, and other crimes, are made punishable. But if
we want to know what theft, or murder, or any other
offence on the list is; if we wish to know what means we
may use to prevent either of these crimes; how the
offender is to be arrested, how confined, how bailed, how
tried, what evidence can be admitted, what is required
for conviction: for all these, and an hundred other questions equally important, we are referred to the common
law of England; that is to say, what one of its greatest
panegyrists styles, "the unwritten or common law," consisting of "general customs "-of particular customs-and
of " certain particular laws, which by customq are adopted
and used by some particular courts:" the whole resting,
as we see, upon custom. And when we come to inquire
how these "customs" are to be known, the same author
gives the answer, "by the judges;" who, he says, "are
the depositories of the laws, the living oracles who must
decide in all cases of doubt," &c. Here, then, we see
what is our law.  It is "the unwritten  customs of
England," which, from the same authority, we are told,
it requires twenty years of close study for a judge to
understand; and which, without fear of incurring the
charge of presumption, I will add, no man ever did or
ever can understand-for this plain reason: that, in many
instances, it does not exist, until the case arises which
calls for its application; then it is pronounced, not by the
legislative authority, but by one of these living oracles.
It is a maxim with English lawyers, that the common




THE SYSTEM 0F PENAL LAW.           89
law is the perfection of human reason. No case, therefore, can be supposed to be unprovided for by it, and,consequently, whenever any new case occurs, and no preceding response has been given that will fit it, the judge
must create one; and although it has never before been
spoken, or written, or applied, we must believe it, from
time immemorial, to have been a part of the common
law; that is to say, as we have just seen, tile custom of
England: which involves the absurdity of supposing that
to have been of immemorial usage, which we know was
never before practised or heard of.
But this is not the only difficulty or absurdity attending a reference to the common law.  These oracles, it
must be remembered, are not given like those of the
sybil, in writing-but like most of those of antiquity,
orally. The judge seldom or never writes his decision,
The words of inspiration are caught by the reporter, and
he publishes them. Here, it would be supposed, an
opportunity is afforded of knowing, with some certainty,
what the law is. To the people? No! The size, the
number, the price, and the disgusting verbosity of the
volumes forbid it. To the lawyers, then, at least? Not
even to them! The same causes operate to prevent
many of them from examining more than an index or
abridgement; but even the few who are rich enough to
buy, and have had leisure to examine, those repositories
of the law, with reference to a single point, for a general
study of them would consume the longest life, even on
that single point will find themselves sadly mistaken if
they look for a certainty. Hear what Blackstone-I'
take my authority only from professed admirers of this
system —hear what he says of the credit that is to be
given to these reports: —" From the reign of Henry the
eighth to the present time, this task (that of reporting)
has been executed by many private and contemporary
hands; who sometimes through haste and inaccuracy,
sometimes through mistake and want of skill, have pub —
lished very crude and impeifect, perhaps contradictory,
accounts of one and the same determination."




90            INTRODUCTORY REPORT TO
Admit, then, that the judge pronounces the true
precept of law, we can have no security that it is truly
recorded; and a word omitted or transposed, may alter
the whole sense of the rule. But this is not all. Let us
suppose the record to be faithfully made, what is to be its
effect? Is it binding on future judges, in similar cases?
In other words, is it law? What say our oracles on
this important question?  Blackstone tells us, "it is an
established rule to abide by former precedents, but with
some exceptions: which are, first, when the precedent is
evidently contrary to reason; secondly, when it is clearly
contrary to the divine law; thirdly, which seems to be
included in the first, when it is flatly absurd or unjust."
This is the doctrine of the text. Christian, the able commentator on this justly distinguished book, says, on the
contrary, "precedents and rules must be followed even
when they are flatly absurd and unjust, if they are agreeable to ancient principles:" and he gives an example
which places the justice of this admired system in a most
striking point of view. It is a maxim of the common
law, that all statutes, whenever passed, refer to, and take
effect from, the first day of the session of parliament.
Now, to exemplify his rule, lhe says, if a statute should
have been passed on the last day of the session, making
an act a capital offence which before was innocent, any
one who had done that act between the first and the last
day of the session, that is to say, perhaps six months
before it was made an offence, would have been condemned and executed under the law.  "This," he adds,
and everybody must agree with him, "was flatly absurd
and unjust;" but yet no judge could declare that it was
not law; and this absurdity and tyranny, worthy of a
Nero or Caligula, continued to form a part of the "perfection of human reason" until the year 1793 (a), when
one step in the road to common sense was made by
enacting that the statute should not be in force before it
was made, but gave it effect, when it contained no special
(a) Statute 33 Geo. III. c. 13.




THE SYSTEM OF PENAL LAW.           91
provision on the subject, from the day on which it passed,
without any attention to the time in which it was known
by promulgation; so that even at this day, in England,
according to the common law, a man at a distance from
the seat of government may be punished for doing an
act which, in the nature of things, he could not know to
be illegal.
Thus the general assembly may form some idea of the
nature of that law, to which our present system  of
criminal proceedings refers us for the definition of certain
offences, and for the rules for preventing, trying, and
punishing them. We see that it consists of unwritten
rules, promulgated by the judges by precedents often
incorrectly reported; of uncertain authority when known;
to be followed, according to some writers, however unjust
or absurd; and, according to others, to be modified by
the principles of reason and the divine law, that is to say,
by the caprice, or the bigotry, or the enthusiasm of the
judge. What more uncertain rules can be referred to
than human reason and the dogmas of religion? What
may appear reason to one, is folly to another; and on no
one subject does the mind of man take so wide a range as
in imagination respecting the divine will.
But if no other objection existed, that which is contained in its very definition, would, it appears, be sufficient
to ask for the substitution of some other;-it is unwritten.
If we like its other provisions (and very many of them
are excellent) let us, at least, destroy that characteristic,
by reducing them to writing.
Two contradictory objections are commonly raised to
this most important operation: the one, that the task is
impracticable-that the body of the common law can
never be reduced to writing; the other, that its rules are
already written, and that a reference to the reporters
and commentators will give a sufficient knowledge of its
provisions. Now, of these two opinions, one only can be
true; and if either be true, it presents a state of things
that no reasonable being can wish to see continued.  If
all the precepts of the common law cannot be reduced to




92              INTRODUCTORY REPORT TO
writing, then a part of them are not contained either in
the reporters or other writers, to which we are usually
referred. Where are we, then, to find this unrecorded
part?-in the unexplored mind of the judge. When is
it to be promulgated? —for the first time after the case
has occurred to which it is about to be applied. And
who is to record or remember it-what is to be its effect
and authority-in our state, which of the seven independent judges is to be considered as pronouncing the
true oracle when they differ? Can principle be more
completely abandoned; can common sense and common
justice be more effectually lost sight of; can confusion be
worse confounded than by this state of things? Take the
other alternative. The precepts and principles of the
common law are already reduced to writing. But where
are they to be found? In voluminous reports which it
requires great diligence to collect, very large sums of
money to purchase, a long life to read (a), and a superhuman intellect to understand and reconcile with each
other when they'are read! They are to be found in
commentaries on, and abridgements of, these reports,
scarcely less voluminous; in which precedents and arguments may be found for almost every position that may
be taken by sophistry, or required for an indiscriminate
defence of right and wrong; add to this, that these
sources of information are inaccessible to three-fourths of
the inhabitants of this state, being written in a language
which they cannot understand; and that of the other
fourth, a very few only have the time or the means of
applying to them; and you have a state approaching to
that which has been justly designated as a badge of the
most abject slavery, one governed by unknown and uncertain laws.
(a) If in the days of Fortescue twenty years of hard study (viginti
annorutnz lucubrationes) were required to understand this law, then in its
primitive simplicity, it is not unreasonable to calculate that the necessary
term must be quadrupled by the reports, commentaries, folio abridgements, books of entries, essays and treatises of practice, which have
accumulated in the four centuries that have since elapsed.




THE SYSTEM OF PENAL LAW.           93
But even this, bad and absurd and oppressive as it is,
this is not the worst. The words of our statute which
refer us to this rule, call it the common law of England.
Now this common law being established in a succession
of very remote ages, when manners, religion, society and
government were in a totally different state from that in
which every succeeding period found them, it necessarily
happened that positive laws were made to accommodate
it to the change of circumstances. Some of these changes
were made at so remote a time, that the most learned
antiquary would find it impossible to fix the point in any
one given subject where common law first received the
aid of positive enactment; in other words, to tell us what
is co1720on, what is statute law. And yet we must at our
peril know this; for the first is our rule of action; with
the second we have nothing to do. Common sense alone
would show the necessity of this research; but being so
happy as to find it supported by authority, I gladly avail
myself of both. We have reports of cases in penal law
for about three years only; and we have them during
that period, because the same court, of which the decisions
were reported, then had criminal as well as civil jurisdiction. Property, it seems, has not only here, but in most
other countries, been considered of so much more consequence than reputation, liberty, or life, that while all
decisions that in the slightest degree affect the former are
collected, those which involve the latter are generally
consigned to oblivion; or, in particular cases, obtain an
ephemeral publicity in the gazettes. The reason of this
will be hereafter discussed. It is here mentioned only
to account for the very scanty means we have of collecting authorities on these important points. But in that
short period to which I refer, a decision took place which
fully supports my position:-B. was indicted for forging
the name of another, as an endorsement on a promissory
note. The person whose name was supposed to be forged
was called as a witness; he was objected to as being
incompetent by the common law; and many authorities
were produced, showing that in England such witnesses




94               INTRODUCTORY REPORT TO
had been rejected. It was answered, that by the common
law he was a good witness; that the decisions relied on as
authorities were made since a statute passed in the reign
of queen Elizabeth, which had indirectly effected a change
in the common law. Of this opinion was the court, and
the witness was sworn (a). From this it appears that the
English authorities were rejected because they were
founded on a change made in the common law by a
statute; consequently that the act of 1805 refers to the
common law, unamended by statute. The first evil resulting from this, is that to which I have alluded; the
necessity of drawing, in every contested case, the line
between the statute and the common law. Supposing
this difficult task to be accomplished, and that we have
reduced the latter to its primitive simplicity by stripping
off the statutory shreds and patches by which it was disfigured or adorned, what have we to reward us for our
pains?  First, we have the benefit of clergy (b), which
assures impunity to every one who can read, for none of
our statutes thave taken it away. Next, the right of
appeal in felony, and, as a consequence of appeal, the
trial by ordeal and battle; for although you have established the trial by jury, so had the common law, and
much in the same manner that you have done, at the
option of the party(c). You have the right of sanctuary,
(a) 1 Mart. Rep. 214.
(b) Should it be objected that our statute, by directing the punishment
of death to be inflicted, abolishes the privilege of clergy; it is answered,
that the same statute introduces the common law which also directed the
punishment of death, but admitted the privilege of clergy as an exception.
If then, the rule and the exception could exist together under the common law, why can they not under our statute?
(c) The same statute that gives us the trial by jury, at the option of
the party, declares that "the method of trial" shall be according to the
said " common law;" but the said common law allowed both the trial by
battle and the trial by jury-and the former has been demanded in our
own day in England, to the great perplexity and astonishment (very
probably) of the lawyers, as Spelman says was formerly the case-non
sine magnajuris consultorum perturbatione. It has within a few years,
I believe, been abolished by statute.




THE SYSTEM OF PENAL LAW.             95
by which every offender who can escape to a church or a
churchyard is privileged from arrest, and may abjure the
realm.  You have the right of approvemenzt, by which
any criminal who can in a judicial combat knock out the
brains of his accomplice, secures his own pardon. You
have the whole doctrine of outlawry, and other incidents
to criminal proceedings, which no advocate for the present
state of things either understands, or would venture to
contend for if he did; but which they cannot avoid and
must learn, and must practise, if the law is to be
executed according to its plain letter.  The judges,
therefore, must dispense with it, and do this to the degree
only that they think fit in each case. The court, not the
general assembly, must legislate, and they must legislate
after the fact! (a)
In offering these reflections, it is not intended to excite
prejudice against, or pass an indiscriminate censure on
the common law of England. On the contrary, it will be
seen that many of its provisions are transferred into the
system which has been prepared; and that among them
so taken from that law, are those which the most effectually secure liberty, reputation and property. But the
subject is discussed to show that your predecessors were
well founded in the assertion, that our present laws being
neither certain nor accessible, were defective in at least
two of the essential requisites to a good system.
The next defect in our present laws was that which the
legislature had in view, when they declared that one
object of the projected code was, to "remove doubts
relative to the authority of any parts of the penal law of
the different nations by which this state, before its independence, was governed." Were there any such doubts,
and if there were, ought they to be removed?  It is an
established rule of national law, that on the transfer, or
conquest of a country, the municipal laws remain in force
until they are expressly changed by the new govern(a) Our constitution has very wisely guarded against ex post facto
legislation by the general assembly. Was it intended that the judiciary
should exercise it i




996. INTRODUCTORY REPORT ON.
ment (a).  When the treaty of 1763, by which Louisiana
was ceded by France to Spain, was carried into effect in
1769, the latter power acted on  this principle, and
solemnly promulgated its own laws (b). France, when
that power in 1803 received the actual transfer of the
country from Spain, in execution of the treaty of St. Ildefonso, took only a temporary and provisional possession,
in order to deliver it to the United States according to
the provisions of the treaty of Paris. No material alteration was made in the laws by this operation.
The first act of sovereignty done by the United States
after the cession, was in perfect accordance with the
principles laid down. For the law which authorized the
president to take possession of the province(c), recognizes
the force and validity of the existing laws, by vesting in
officers to be appointed by the president, the same military, civil and judicial powers that were exercised under
the Spanish government. The province continued under
its old laws, administered by new functionaries, from the
time of the transfer in December 1803, until the ist of
October 1804, when the law giving us the first grade of
territorial government(d) took effect. This act organized
the executive, legislative and judiciary branches of a
territorial government. It extended to the territory the
operation of certain laws of the United States, fixed the
qualifications of jurors, and secured the right of trial by
jury, and gave the writ of habeas corpus; but so far from
repealing any of the former laws, it contains an express
provision that all laws in force in the territory at the
passage of the act, and not inconsistent with it, should
continue in force until altered, modified, or repealed by
the legislature.
The next change in the political organization of the
territory produced none in our civil or penal laws, the
(a) 1 Black. Com. 107; Cowp. Rep. 204.
(b) O'Reilly's Pro. 1769.
(c) Act of 31st October 1803,
(d) Act passed 26thMarch 1804, to take effect 1st October following.




THE SYSTEM OF PENAL LAW.                97
act giving us the second grade of government (a) containing the same clause for continuing them "until altered,
modified, or repealed by the legislature." And when the
trammels of territorial government were thrown off, our
constitution carefully preserved the same provision (b).
Thus by uninterrupted succession, the laws by which the
Spanish province of Louisiana was governed, with the
exception only of such as were inconsistent with the
several enumerated acts, were continued through all the
different changes of government, and unless since repealed, altered or modified, are the law of the land at this
day. That the penal laws formed no exception is evident
from the general words which comprehend them, and also
from some of the earliest acts of the legislative council,
which recognize them in express terms.
One of the first laws passed by the legislative council (c)
declares, that " whenever a conviction had taken place or
night take place, for any crime which by the existing laws
of the territory would subject the criminal to be sentenced
to the galleys for life, that such punishment might be commnuted," &c. Now as no penal law whatever had then
passed since the new government was established, and a
sentence to the galleys was unknown in our jurisprudence, the " existing laws" here mentioned must have
meant the Spanish laws-and, of course, the Spanish
penal laws.
Another act provides (d), that no suit, either civil or
criminal, shall be prosecuted against any commandant for
any act done subsequent to the 30th September (c) of that
year, by virtue of a previous appointment; with proviso,
(a) Act further providing for the government of the territory of
Orleans, 2d March 1805.
(b) 11tb section 4th art. Constitution of Louisiana.
(c) Act 2d February 1805, sect. 1. 2 Martin's Dig. 226.
(d) Act 13th December 1804, sect. 1. 2 Martin's Dig. 106.
(e) The reason why the 30th: September is the date referred to is,
because on the day after, the law organizing the territorial government
went into operation; and it was doubted whether the acts done after
that time by officers previously appointed, were valid.




9.8 INTRODUCTORY -REPORT -TO
that it shall not protect him from prosecution for fraud
or crime under colour of office.  But, at that time, there
were no other than the Spanish laws for punishing fraud
or crime; therefore, here again the existence of those
laws is acknowledged.
Again, on the 4th May 1805, an act was passed for the
punishment of crimes and misdemeanors, which, after
specifying a number of offences, directs, by the thirtythird section, that all the off'ences therein named shall be
construed and tried according to the common law of
England: and by a subsequent statute, passed in the
same year, two or three other crimes are added to the
list; and it is'further enacted, "that all other crimes,
oifences and misdemeanors, committed by free persons,
and not provided for by this act or the one to which this
is a supplement (act of 4th May 1804), shall be punished,
and shall be prosecuted and tried according to the common law of England." There were, then, " other crimes,
offences and misdemeanors," which were not enumerated
in the only two statutes that had then been passed.
Against what law were they offences? Clearly against
the pre-existent Spanish law. This section was repealed
the next year. The repeal left things in the unsettled
state they were in before the section passed, as to the
mode of procedure; but it did not change the expression of legislative opinion as to the existence of the
ancient laws.
But this is not all. The acts I have quoted were
passed under the first grade of government, when the
legislative council was appointed by the president.
Under the second the elective franchise was extended to
the people; and one of the first acts of their representatives was not only to acknowledge the same laws, but to
vest in the superior court of the territory the power of
punishing crimes that were committed under the Spanish
and French governments (a).
Thus, the principles of national law, the acts of con(a) Laws 1st territorial legislature, 3d June 1806.




THE SYSTEM OF PENAL LAW.           -99
gress, the laws of territorial legislatures established by
them, and the constitution of the state, all concur in
proving that the ancient civil and penal laws of the province continued in force, except in those particulars in
which they were modified by our institutions, or repealed
by our laws. It becomes, then, highly important to
determine what parts of those ancient laws are thus
modified; which of them have been repealed; and what
are the provisions of those which still exist unaltered.
If all those laws have been abrogated, there was no
foundation for the apprehensions expressed by your predecessors on that subject. If the abolition is express as
to some, and presumptive only (and of course doubtful)
as to others, their apprehensions were well founded, and
the doubts they entertained ought to be removed; and if
any parts of that law have neither been expressly nor impliedly repealed, all such parts being still virtually in force,
ought to be examined; and if good, to be re-enacted
in a language that may be understood; or, if bad, to be
repealed.
Laws may be repealed either expressly or by implication. But there is nothing that has the appearance of
an express repeal in the case before us; unless it be the
clauses contained in the several recited acts which continue the existing laws, with the exception of such as are
inconsistent with those acts respectively. But this, in
truth, is no more than would have been effected without
that clause. For a repugnancy between the old and the
new law is an implied repeal of the former; and this is
the only criterion (a) by which we can judge that there
is such repeal; for it has been decided (b) in our courts,
in conformity with British decisions, that affirmative
statutes, not incompatible in their execution with the
old law, and containing no negative or repealing words,
do not abrogate the old law.
The Spanish laws, then, have not been expressly re(a) 1 Black. Corn. 89.
(b) 1 Martin's Rep. (new series) p. 74.




100           INTRODUCTORY REPORT TO
pealed. Have they been so by implication   Certainly
they have not been so altogether; for there is not the
least repugnancy between many of them and our constitution or laws. What classes, then, of them have been
repealed?
First, it would seem clear that all those are abrogated
by the mere change of government (a), which relate to
the prerogative of the crown, and to the mode of making
the appointment of officers. As to the duties of such
officers, in the adminstration of justice and preservation
of peace, they must be performed by those appointed by
the new power, having corresponding functions, whether
under the old name or with a new designation.  Thus,
soon after possession was taken by the French in 1803,
Mr. Laussat, the French prefect, appointed a municipality to exercise the powers of the Spanish cabildo
within the city, which, on the transfer to the United
States, was continued with the same attributes until the
town was incorporated by the legislative council. Thus,
too, the governor, immediately after the transfer, appointed an alguazil mayor and commandants, who were
to exercise, as far as was compatible with the new order
of things, the same functions with the officers of that
name under the Spanish government.
Secondly, all those laws are abrogated which would
interfere with any right secured by the constitution or
laws of the United States or of the state; such as
the liberty of the press, the right to bear arms, the right
of having counsel, of trial by jury, and others of that
description.
Thirdly, I am inclined to concede that all those laws
are virtually repealed which bear upon the same offences
that are prohibited by laws passed since the cession,
although there may be nothing absolutely repugnant
between the two penalties; there being, in my opinion,
a difference between acts passed by the same government
on the same subject (all of which are considered as one
(c) Vattel, lib. 3, c. 13, p. 199.




THE SYSTEM OF PENAL LAW.           101
act), and the acts of a new power legislating upon an
offence which had been defined by the jurisprudence of a
former power; in which latter case I am inclined to
think, that the new legislation ought to be considered as
expressing its whole will, unless there is an express or
implied reference to the old law. And finally, the law
of evidence, the mode of trial, the rules of procedure,
and definition of each of the offences enumerated in the
act of 4th May 1805, are changed, so far as relates to
the ofences so enumerated, because there is a clear repugnancy between the old law and that statute in relation
to those particular offences.
The most liberal rules of constructive repeal can go no
further; yet, discarding all that comes within these rules
and all that is expressly repealed, when we look into the
former law, enough of it will remain to make us reverence the wisdom which directed that all doubts, as to
its existence, should be removed. It would be difficult
perhaps impossible, to give an accurate list of the pena
laws of Spain which remain unrepealed, or to furnish a
complete analysis of their provisions.  But this very
uncertainty is alone a sufficient motive to justify legislative interference. Some cases, however, may be ascertained; let us examine them. The investigation is both
curious and instructive, and it will produce more serious
results than at first sight might be supposed.
The laws designating offences against sovereignty and
the public peace have been generally provided for by our
statutes, or by the constitution. They, therefore, come
within the rules I have laid down, and may be considered
as repealed.
But before we enter further into the very cursory
examination which it is proposed to make of such
offences, affecting reputation, person, property or religion, as by the rules laid down may be supposed yet
to be in force, an important title presents itself, which has
no corresponding division in our statute law, or that
system to which it refers. It operates on the condition
or standing in society of those who come within its




102           INTRODUCTORY REPORT TO
purview.  It is called in the Spanish law, "Enfamamiento;" and, from its definition, is a species of dishonour
attached to persons, as well from their birth or course of
life, as from having incurred the animadversion of the
magistrates, without being convicted or even accused of
any offence; as from the condemnation for an infamous
crime. Political disabilities attended this state, which
our institutions have, in some instances, virtually repealed; but the note of ill fame may still remain, and
greatly influence the comfort and respectability of those
to whom it is thus attached by law, if those laws are still
in force. The subject forms the sixth title of the seventh
book of the Partidas. By the second law of this title,
the innocent fruit of an illegal marriage, the son whom a
father may justly or unjustly have accused in his testament, the suitor to whom the judge may, in court, have
addressed an admonition to amend his life, the advocate
who may have been warned not to bring a false accusation, the man of good credit who availed himself of his
character to ruin that of another by slanders, and the
unfaithful depository, were all declared infamous. By
the third law, not only the wife unfaithful to a living
husband, but she who forgets a dead one in the arms of
a second before her year of mourning is expired, together
with her father, if he consent to the marriage, and the
too impatient successor of the deceased, come within the
penalties of the law. The following law confounds in
the same indiscriminate class of infamy, procurers,
comedians, mountebanks, usurers, recreant knights, foresworn promise-breakers, gamblers, and buffoons. The
exclusion from office of all these ill-associated descriptions of persons is, perhaps, remedied by our constitutional
laws; but their infamy creates an incapacity to testify,
and this again is partially counteracted by the reference
to the English rules of evidence in certain enumeratedcrimes. But in the offences not enumerated in the act of
January 1805, beyond which, as I shall show, the reference to the English law does not extend, and in all
civil cases, what is to take away the disability to testify?




THE SYSTEM- OF PENAL' LAW.              1-03Our civil code (a) renders those incapable whom the law
deems infamous.  What law?  If the answer to this important question be, as I think it must be, the unrepealed
law by which the land was governed; if there should be
a doubt on that subject; do those who flatter you with
dissertations on the perfection of your present laws, who
cry out "peace, peace, when there is no peace," do these
blind guides know the depth of the pit to which their
counsels are directing you? Have they calculated, or
can they not perceive the evils attendant on this state of
things in this one particular?  Let it be remembered
that these disabilities attach not upon conviction only (b),
but from the fact. Let us suppose, then, that a usurer
should be appointed to an important office, and it becomes the interest of an individual to make this exception to his official acts, will it be satisfactorily answered
by saying that the constitution sets no bounds to the
appointing power? But, it may be replied, the same
constitution continues all laws which were in force at
the time of its adoption until they shall be repealed;
but the law declaring infamous persons incapable of
exercising office has never been repealed; therefore, if
the pre-existing law  excluded certain persons as being
infamous, there is nothing in the constitution that takes
away the disability. With respect to elective offices it
is different; where the constitution enumerates certain
qualifications, it is reasonable to suppose it expresses all
that are required.
Should it be thought, however, that the Spanish law
creates no disqualification to office, the more important
(a) Art. 2260. See also the act establishing the superior court, sec.
10.-" No witness, of the age of discretion, shall be disqualified fron
testifying on the ground of being incompetent, unless such witness be at
the time of producing him, interested or infamous."
(b) This law confirms the opinion that a usurer is ipso facto infamous, without any conviction, and as the law does not distinguish
whether it speaks of open or secret usury, it must be understood of all."
Greg. Lopez. note on the 4th law, and he concludes, 8unt ergo in magno
periculo usurarii.




104'-            INTRODUCTORY REPORT TO
objection as applied to witnesses remains. In the list of
exclusions, how many are enumerated whom it would be
in the highest degree unjust and absurd to render incompetent, were a law now to be made on the subject?
The accidental circumstance of extra-matrimonial birth —
following a profession that has been ennobled by Roscius
and Garrick and Talma —or one that, although requiring
neither genius nor learning, has yet occasionally had the
sanction of great names in ancient (a) and modern times
for its practice-receiving an undeserved reprimand from
a choleric judge-solacing the grief of a widow before
the time permitted by law for drying up her tears,-are
certainly not acts that render one unworthy of belief;
not to speak of the numbers who would be excluded
under the exception of gambling, or the other incapacities
specified in the law. Yet one of these may be the only
witness to a transaction on which fortune may depend,
or to exculpate from a charge which may affect reputation or life.
I have  enlarged  more on  the  consequences of removing doubts as to the existence of this law because of
its general operation; for there is scarcely a litigated
question in which it may not be raised, or a person
accused, to whose interests it might not prove fatal.
Let us now examine whether there are not penal laws,
strictly so called, that may not be supposed still in force,
according to the principles which have been laid down.
The seventh title of the seventh Partidas treats of the
crimen  falsi (falsedales), and  (among many offences
(a) Cato, the censor, would, under this law, have been doubly disqualified as a witness; for, if Plutarch is to be believed, he was not
only a usurer but a **** for his own slaves.  "Teniendo," (in the
expressive language of the Partidas' describing the offence), " sus siervas
en su casa faziendolas fazer maldad de sus cuerpos por dineros! " 7 Part.
tit. 6, law 4.
The list of exceptions would be greatly swelled, if the commentator's
opinion is to be followed, who includes in the class of usurers not only
those who, like Shylock, deserve to be "rated about their moneys and
their usances "-but even dealers in exchange and bankers, whose
counters, he says, " are altars raised to usury and oppression."




THE SYSTEM OF PENAL LAW.           105
which might probably be brought within the purview
of our statute against forgery, coining and perjury)
forbids, under very heavy penalties, other acts which are
not now considered to be indictable, but which may or
may not be deemed offences while our laws are suffered
to remain in their present uncertain state. Among these
are the following: the advocate is guilty of this offence
if he betrays the secrets of his client, or if he designedly
cite the law falsely (a). The notary, or other person is
guilty, if he deny the deposit of any mystic testament
or other writing; if he hide or deliver it to another; or
if any writing be deposited with him to be kept secret,
he read or publish it (b). The judge, if he knowingly
give a judgment contrary to law; the person who says
mass without being ordained, and he who changes his
name to one that is more honourable, are guilty and
punishable for falsehood. The next is a falsity of rather
difficult execution, and I believe not made punishable by
any of our statutes: I must give it in the words of the
Spanish lawgiver: "Trabajanse (c) a las vegadas algunas
mugeres que non pueden aver fijos de sus maridos, de
fazer muestra que son prenadas: e quando Rlegan al
tiempo del parto toman enganosamente fijos de otras
mugeres e meten los consigo en los lechos, e dizen que
nacen dellas, esto dizimos que es gran falsedad; faziendo
e poniendo fijo ageno por heredero en los bienes de su
marido bien assi como si fuesse fijo delo."
There are other offences in this class which I do not
enumerate, because it may be doubtful whether they do
not come within some of our statutes. The punishment
is banishment, and confiscation of all the property of the
offender to his nearest ascendent or descendant; if he
have no such relation, then to the treasury. A milder
punishment is inflicted on the person who (d), being
appointed to divide lands or apportion other property in
dispute, shall make a partial division; and also on the
(a) 7 Part. tit. 7, 1. 1. (b) 7 Part. tit. 7, 1. 1.
(c) lb. tit. 7, 1. 3.  (d) lb. tit. 7, 1. 8.




106               INTRODUCTORY REPORT TO
arbitrator who shall designedly make a false statement of
the accounts he is appointed to settle.
Under the next head, of Homicide (a), I find the
following acts made punishable, which are not so by our
statutes.
The first must be a startling one to the faculty of
medicine, as one of those I have cited must be to the
gentlemen of the bar (b). It recites (c), that " men give
themselves out to be more skilful in physic and surgery
than they really are (d); and that by reason of their
being less skilful than they pretend, some of their patients
die by their fault." It, therefore, enacts, that if any
physician shall give an improper medicine, or too much
of a good one, or any surgeon, in dressing a wound, shall
break a bone, or divide an artery, and the patient in one
or the other case shall die, the offender shall be banished
for five years and forbidden to practise. In due order
comes the apothecary, after the physician; without whose
orders, if he gives a dose to a person who dies in consequence of having taken it, the pharmacopolist is guilty
of homicide.
The destruction of our species in the inchoate state of
existence is not punishable by any of our statutes. It is
so by those of Spain, but they contain a provision which
I have not- seen  in  any  other code-that if death is
caused by any medicines or herbs, given for the laudable
purpose of procuring an heir to the childless, it is a
punishable offence.
(a) lb. tit. 8, De los Omezillos.
(b) As the presumption is that every man admitted to the bar knows
the nature of the law he quotes, it might, perhaps, be argued, that whenever he cited for law that which was not law, he did it designedly, and
of course made himself liable to the penalties of the law, "de las
falsedades," which I have quoted.  A law full of peril for the profession.
(c) 8 Part. tit. 7, 1. 6.
(d) This part of the recital would apply to more professions than one.
As the law is limited, however, it behoves the advertising part of the
faculty particularly to discover whether it be in force,




THE SYSTEM OF PENAL LAW.         107
The title of Defamation (Deshonras)(a) contains some
things well worthy of attention in the disquisition we are
now making. It divides defamation into two kinds, by
word or by deed. Both are made punishable; and the
definition includes everything that is falsely said or done
to dishonour another.  Defamation by deed includes
writing, printing, gestures, and all other acts done with
the same intent, including such as would come within
the English definition of assault and battery. One of
these laws, although perhaps somewhat too strict for the
freedom of modern manners, might, in our days, find
some careful guardian, jealous husband, or prudent
father to put it in force, if it should be deemed one of
those that have lost its use, not its authority; and I
transcribe it that the gay gallants who are subject to its
penalties, may know the peril of their ways.
"Women," says the preamble, "whether widows,
wives or maids, who live virtuously in their houses with
an honest fame, are frequently injured, grieved and dishonoured by men who take divers means of doing so.
Some there are who are continually whispering to them,
visiting frequently at their houses, and following them
in the streets to the church or other places to which
they go; others who dare not pay those public attentions, secretly send jewels to them and to the persons
with whom they live, for the purposes of seduction; and
others again, strive to corrupt them by the instrumentality of infamous agents, or by other unlawful arts.
By these means the weak are led astray, and the virtuous are suspected of evil communication with those
who pay them such attentions. Wherefore, we hold
that those who conduct themselves in this manner do
great wrong and dishonour, not only to the women, but
to their parents, their husbands and other relations; and
we command that whoever in any such manner offend,
shall be fined for the benefit of the woman who is dishonoured; and moreover, the judge shall admonish him
(a) 7 Part. tit, 9,




108           INTRODUCTORY REPORT TO
who thus follows and dishonours a woman, that he do so
no more, and that he desist from such folly, under the
penalty of more serious penalty if he do not desist."
Among the other evils which are considered as reflecting dishonour on whom they were practised, are the
schoolboy tricks of shutting another out of his chamber
and sealing the door, smoking out the neighbour in the
story above you, or throwing water on him who is below.
Contemptuously throwing down a book in the presence
of the author, is a dishonour under the law, as well as
accusing one of theft; but from this last the astrologer,
who is consulted to find out stolen goods, is exempted, if
he be a true astrologer, but not if he is a pretender to
that noble art.
It is difficult, in reviewing some of these laws, to preserve the gravity required by the general subject; but it
was deemed necessary to show in what manner trivial
as well as more serious acts were confounded in the laws,
to which we may, by no forced construction, be still
liable.  Some of those which remain are of a graver
nature.
Injuries against the peace are provided for in a separate title (de las Fuercas)(a). Most of them are embraced by our statutes. Some, however, are not; and
of these last only it is necessary to speak. One of these
is the forcible entry into the possession of real or personal property; for which the penalty is the loss of the
property, if the party had any in the thing or land
forcibly taken, and its value, if he had none. The same
law applies to the tenant who holds over by force; and
the borrower who, without paying the debt, shall forcibly
resume his pledge.
In the title of Theft there is one remarkable provision
by which common gamblers are exempted (b) from punishment for theft, or any other crime, except murder, which
they may commit in a house, the master of which receives
them, knowing their character. Another makes it a
punishable offence to remove a land-mark.
(a) 7 Part. tit. 13.    (b) Ib. tit. 14, lib. 6.




tHE SYSTEM OF PENAL LAW.             109
The sixteenth title, of Fraud, specifies a number of
acts of this nature, all of which are punishable by our
statute; and require no other remark, than that our modern
professors cannot claim the merit of originality, several
of their most approved stratagems appearing by these
laws to have been practised as early at least as the
thirteenth century.
Offences against morals have not attracted the attention
of our legislature. We have but one statute on the
subject. In the Spanish law there are many. Adultery
is mnade a crime. The faithless wife is punished with
stripes and confinement(a) for life in a convent. Her
seducer with death.  The husband may forbid the person
he suspects of a design on his domestic peace, to visit or
speak to his wife; and any interview after this admonition,
is conclusive proof of guilt(b). The guardian of a female
orphan who marries his ward, or gives her to his son, is
guilty of this offence(c).
One of our statutes makes incest a crime, punishable
by imprisonment for life; but as it gives no definition of
the offence, a reference to the Spanish law may be found
necessary. This defines the crime to be an illicit connexion between relatives unto the fourth degree of the
canonical law, by consanguinity or affinity, expressly including the sisters-in-law and brothers-in-law; and, by a
subsequent disposition(d) a connexion between persons
who were sponsors for the same child (compadres y comn.
madres) incurred the same penalty. The punishment
was the same as that of adultery, if the offence were
committed without marriage; but, if after marriage,
banishment for a nobleman, with the addition of stripes
for other offenders.
Seduction of a woman(e) of good fame, incurs forfeiture
of property and stripes. The husband who sells his own
honour and the virtue of his wife, the agent(f) in the
(a) lb. tit. 17, 1. 13.  (b) Ib. 1. 12.  (c) lb. I. 6.
(d) Nueva Recopilacion, lib. 8, tit. 20, 1. 7.
(e) 7 Part. tit. 19.   (f) Ib. tit. 22.




1.10          INTRODUCTORY REPORT TO
seduction of a woman of virtue, and those who educate
children for the purpose of public prostitution, are
punishable with death.
As the legislation of which I am  giving a partial
review was made in the thirteenth century, it is not
surprising to find that astrology, witchcraft and incantations, love-powders and wax images, make a figure in it.
Divination is a capital offence, except by astronomy,
which is not only permitted, but praised as one of the
seven liberal arts, "because the conjectures and presages
that are made by this art are drawn from the natural
course of the planets and stars, and are taken from the
books of Ptolemy and other sages who treat of this
science."  None, however, but adepts are to meddle with
this; all false pretenders to it, witches, sorcerers, fortunetellers of every description; enchanters who raise the
spirits of the dead, were capitally punished; but with
the proviso, that if the object of the exorcism or of the
black art be to cast out a devil, to preserve the crop from
hail, or from lightning, or from insects, or for any other
good object, the case is altered, and instead of punishment
the operator is entitled to reward.
The subject of the few other laws of which I shall
speak which were in force here on the change of government, is Religion. There is a general impression, so
firmly established as almost to amount to conviction, not
only that all former laws on this subject are repealed,
but that no law can constitutionally be passed subjecting
any one to penalties for his religious belief, or giving any
preference to one religion over another. It is to be
lamented that this persuasion is unfounded. For however
we might rely on the enlightened spirit of the age to
prevent the passage of such laws, yet the interest in
question is one so essential to the happiness and peace of
the people, that it is not only unfortunate but extraordinary, that the liberty of conscience should have been
overlooked when the other great interests were secured
by the constitutional compact.
This omission is the more surprising, because all the




THE SYSTEM OF PENAL LAW.           111
several laws and compacts regulating our political state,
prior to our constitution, have contained stipulations on
this head. The treaty of Paris declares, that until the
inhabitants of the ceded territory shall be admitted into
the union, they shall be maintained in the free enjoyment
of the religion they profess.  The law establishing the
first grade of government, and the ordinance which gave
the second, both contain restrictions on the legislative
power intended to secure religious liberty.  But our
constitution, careful of every other right, descending to
minutiae which would seem to trench on ordinary legislative power in other cases, is silent in this. That of the
United States does not supply the deficit; it only limits
the powers of congress on that subject, but imposes no
restraint on those of the states.
In the examination of this subject, which I have made
with solicitude, there are two arguments: one that might
be used to show that the old laws were repealed; the
other that there exists a restriction on the powers of the
legislature. I state them with pleasure, and hope most
sincerely that they may always be deemed conclusive
with others, although I regret to say they are not so
with me.
First, as to the repeal.  The act of 1804, giving us the
first grade of government, contains the following provision: "The governor and council shall have power to
alter, modify or repeal the laws which may be in force at
the commencement of this act. Their legislative powers
shall also extend to all the rightful subjects of legislation;
but no law shall be valid which is inconsistent with the
constitution or laws of the United States, or which shall
lay any person under restraint, burthen, or disability on
account of his religious opinions, professions or worship;
in all of which he shall be free to maintain his own, and
not be burthened for those of another."
I fear that the restriction against laws upon the subject
of religion, by the true construction of this clause,
operates prospectively only on the laws that might thereafter be passed by the legislative council; if so, it causes




112            iNTRODUCTORY REPORaT TO
no repeal; for the eleventh section provides for the continuance of the laws in force in the territory, except those
that are inconsistent with it.  Now if the restriction is
prospective only, the former laws are not inconsistent
with it. Should this, however, be a repeal, it is an implied one, and nothing of such importance ought to be
left to implication.
The restriction on the powers of the legislature to pass
such laws stands on very debateable ground. It is not
contained in the construction.  But in the ordinance
giving us the second grade of government, there are
certain articles which are declared to be a compact
between the original states and the people and states in
the said territory, and which are for ever to remain unalterable, unless by common consent. The first of those
provides, that no person, demeaning himself in a peaceable and orderly manner (a), shall be molested on account
of his mode of worship or religious sentiments, in the said
territory.
By the act authorizing the inhabitants- to form a state
government, it is provided, among other things, that the
constitution to be formed shall contain the fundamental
principles of civil and religious liberty; and the law admitting the state into the union, contains the proviso,
that all the conditions contained in the third section of
the last recited act, shall be considered as fundamental
conditions and terms, on which the state is admitted into
the union. Whether a law passed in contravention of
the article of the ordinance or of the proviso in the two
laws regulating our admission into the union, would on
that account be declared void, when the constitution
contains no restriction of power on this subject, is a
question requiring an argument that does not come
within the scope, and could not be brought within the
(a) In bad times this phraseology might give rise to oppression: " he
is not to be molested in his religion, if he behave in an orderly manner."
Do not his religious rights then depend on the order of his behaviour 
What would an inquisitor or an inquisitorial judge call orderly?




THE SYSTEM OF PENAL LAW.          113
compass of this report. It is stated to show, that even
on this vital subject, the laws respecting religion, there
were grounds for the doubts expressed, as one of the
motives for directing the work which I have now the
honour to present.
The laws on this subject are extremely oppressive and
highly penal. Heresy, Judaism, and blasphemy, were
their principal objects.
The religion of the Jews was tolerated; but an attempt
to make proselytes, leaving their houses on holy Friday,
buying a Christian slave, and being guilty of the absurd
charge of " crucifying young children " at their festivals,
were punishable with death; as was the connexion of a
Jew with a Christian woman; for, says the lawgiver (a),
"if Christians merit death who commit adultery with
married women, much more do Jews deserve that punishment for connecting themselves with Christian women,
who are all spiritually the wives of our Lord Jesus Christ,
on account of the baptism they have received in his
name." In one instance the Jews had a protection
allowed them which the English laws do not give: they
could not be arrested on the day of their Sabbath.
Heresy is defined to be a departure from the Catholic
faith as established by the Church of Rome, or disbelief
in a future state (b). The punishment is death at the
stake.
Blasphemy is anything that is said or done in contempt
of God, the Virgin Mary, or the saints. The punishment
for which, if by words, is forfeiture, according to the rank
of the offender and the repetition of the offence; if by
deed, with the loss of the hands.
Some of these laws may have been repealed by later
Spanish laws; others, doubtless, were added prior to the
time that Louisiana was ceded, which have not been
brought within our reach. Therefore, the enumeration
may not be perfectly correct. This will be of less im(a) 7 Part. tit. 24, 1. 9. Recop. de. Cast. ~ 2, 3 and 4.
(b) Part. tit. 26, 1. 1 and 2. Rec. 3, i.
H




114          INTRODUCTORY REPORT TO
portance if the object of the detail is kept in view. This
was to give a general view of such penal laws only as
might not be supposed to be repealed by our constitution
or laws; and it must also be remembered that the provisions, exceptions and other details contained in those
laws, which would have been indispensable if they had
been quoted as rules of action, were not thought so when
their existence and general operation only was the subject
of inquiry; yet I have been guilty of no voluntary
omission, and have followed the text always in preference to the commentary of the law.
Most willingly would I here close this catalogue; but
the present state of our jurisprudence renders it a duty
with which I reluctantly comply, to add to the list a
word at which humanity shudders, and to ask, whether
we are as sure as we ought to be that torture forms no
part of our criminal law? It found, with all its horrors,
a prominent place among the laws of Spain; and to determine in what degree they are modified or repealed, the
hateful task must be performed of adverting to their
provisions.
This diabolical power was vested in the judge, with no
other limitation as to the degree in which it was to be
inflicted, than that it should not extend to loss of life and
limb.  Within these limits he was not only empowered
but instructed so to direct the operation as to create the
most excruciating physical and moral anguish. These
monsters studied the human frame, to discover in what
part it would feel the acutest pain; they marked the
working of the mind, to know where the deepest wounds
of the spirit could be inflicted: and they insert the result
of their cold-blooded calculation in their laws with
minutiae that sicken the heart.  Among several delinquents, the judge is directed to select for this operation
of cruelty and horror, the youngest, the most delicately
framed (a), the most tenderly educated, and-is this an
earthly or a hellish code that I am reviewing? —when
(a) Ib. tit. 30, 1. 5. Gom. Var. Res. c. 13.




THE SYSTEM OF PENAL LAW.            115
there is a father and a son, to rack the limbs of the child
in the presence of the parent —" because," says the worthy
commentator on this text, "a father (a) can better bear his
own torments than those of his child;" and in the same
spirit, women were made the first victims, until some of
these fiends discovered that they bore pain with more
fortitude than men. The objects upon whom the application of this engine for beating out the truth, as it is
called in their laws (escodrinar la verdad), was authorized, were, first, the accused(b), who was vehemently
suspected, or against whom there were no certain proofs,
for the purpose of forcing a confession; secondly, a convict, to make him discover his accomplice; thirdly, a
witness who prevaricates.  It would not have been
necessary to enter into the details of these laws, if their
provisions had been known or attended to by those who
framed our constitution. They seem to have entertained
the common error that torture was only authorized in
order to force a confession from the accused; and they,
therefore, thought it would be completely abrogated by
the clause which provides, "that the accused shall not be
obliged to give evidence against himself," —leaving its
application to force testimony against others entirely
unaffected by the provision, at least so far as relates to
the offences not enumerated in the act of 4th May, 1805.
I would not be understood as expressing a belief that
this mode of obtaining testimony will ever be resorted to.
It is too repugnant to our feelings'-too inconsistent with
our morals and earliest impressions.  Non nostri generis
nec sanguinis est.  It is not of our country, and belongs
not to our generation or race. It is of foreign growth,
and cannot be engrafted on our jurisprudence. Yet the
word must not stain its pages. It is yours to purge them
of this disgrace; to take away not only the possibility of
its being inflicted, but prevent its very sound from
offending the ears, or its idea polluting the minds of free
(a) Greg. Lop. note on 1. 5. 7 Part. tit. 30.
(b) 7 Part. tit. 30, 1. 8. Ant. Gom. ubi supra.




116                INTRODUCTORY REPORT TO
men: or, if it must be remembered, let it be only as one
in the list of evils from which our connexion with a confederacy of free states has relieved us. Yes, this task
must be performed: for notwithstanding the confidence
we all feel that the intelligence and humanity of our
fellow citizens would reject these horrors, yet we must
not tempt folly or wickedness by placing such weapons
within its reach.  All the inhuman and ill-assorted and
unknown laws must be positively, unequivocally, publicly
abrogated. Reason requires it; prudence points out the
danger of delay; and experience has added her warning
and convincing voice to teach us how little reliance we
can place on our fancied security (a). For, in closing this
subject, let me answer those who still tell you there is no
danger; who can see no mischief until it is felt; who
deride as visionaries and false prophets of evil, all those
who by a prudent foresight strive to avert them. Let
me tell those incredulous apostles, who will not believe
(a) I should have thought the danger almost imaginary on this point
if I had not found the philosopher Voltaire, his disciple Diderot and
M. Hautefort, all three commentators on Beccaria, enthusiastic admirers of his humane doctrines, and particularly of his arguments for
the abolition of torture against the accused —if I had not found them
more or less expressly agreeing, that it ought to be retained as the means
of procuring from a convict the disclosure of his accomplices.
" Reserve (says Voltaire) at least this cruelty for acknowledged villains,
who have assassinated the head of a family, or the father of his country,
to find out their accomplices," &c.-Comrn. Becccria, c. 13.
Hautefort says, " It (the torture) can only be employed against a
criminal convicted in the most legal manner, in order to discover his
accomplices." But he adds, " would it not~be essential to examine whether
the search after accomplices is not too rigorous."-Observations sur le
Livre des Delites et des Peines.
Diderot is explicit. He says, " this additional torment is necessary to
draw from him (the convict) not only the discovery of his accomplices
and the means of arresting them, but an indication of the proofs necessary for their conviction." —Notes on Beccaria, c. 12.
When the apostles of reform and preachers of humanity use such
language as this in favour of the application of the torture in one of the
cases in which, if my argument be correct, it still may be considered
as part of our law, is it a very absurd fear which urges its positive
abolition?




THE SYSTEM OF PENAL LAW.               117
that a stroke has been inflicted until they can lay a finger
on the wound, or that what has been dead may be
revived, until with their eyes they behold the resurrection-let me tell them, that such revival of dead and
obsolete laws requires no miraculous power to effect;
that a weak, an ignorant, or a conceited magistrate is
sufficient for the operation; that it has actually happened; and that by such agency one of the worst, the
most inhuman and arbitrary of all those ancient laws has
been executed under our free and enlightened government.  In a remote parish of the then territory, a human
being was, for I know not what crime, by the sentence of
a magistrate, condemned to be burned alive; that the
sentence was executed in his presence; and that there
was no law passed by the government of the territory
authorizing such punishment. It is true, the victim was
a slave. It is true, that a law of Spain directs that the
slave shall be punished with more cruelty(a) than the
freeman, and the commoner than the nobleman. But
the only law (b) I have been able to discover for using
this inhuman  punishment makes no distinction.   It
permits the judge in every capital case to designate the
punishment.  It may, at his discretion, be either "decapitation with the sword (for the statute with great
humanity forbids the saw or the reaping-hook), or it may
be by burning, or hanging, or casting to be devoured by
wild beasts." Our judge, in the exercise of the discretion
thus humanely given to him, chose the fire and the
faggot, and afterwards showed where the writhings of
agony had forced the chain of his victim into the bark of
the tree that served for a stake.  No name is mentioned,
for death has removed the magistrate from the reach of
(a)'i Part. tit. 31, 1. 8. "Ca mas crumente deven escarmentar al
siervo que al libre y al ome vil que al fidalgo."
(b) 7 Part. tit. 31, 1. 6. I must in candour state that I am ignorant
under pretext of what particular law this execution took place; but as
the one I have cited does authorize it, and there was no territorial
statute that could justify it, I thought it fairer to suppose that he acted
with than without authority.




118           -INTRODUCTORY REPORT TO
justification or censure; but having strong evidence of
the fact, and its bearing being so immediate on the
subject of the report, I should have been culpable
in suppressing, however reluctant I might be to mention it.
Let me now ask those who have followed me through
this rapid detail, whether wisdom, prudence, and even
necessity, did not dictate to the legislature the duty of
"removing doubts relative to the authority of any parts
of the penal law of the different nations by which this
state, before its independence, was governed;" and of
selecting out of them " such statutes as were proper to be
retained in the penal code?" In the mass to which I
have referred, there are some provisions that we should
find an advantage in retaining; but much so inconsistent
with our ideas of justice, so well calculated to become the
instruments of oppression, that all doubts of their existence as a part of our law, ought to be put aside. Where
there is doubt, there is danger; and my object in urging
that none of the received rules of repeal apply to those
laws, has been only to show that doubts may be raised,
that in the hands of a more able arguer those doubts may
be converted into conviction of their existence, and to the
enforcement of such as might suit the party-feeling or
other bad passions of the moment. Can the confusion of
such a decision be well imagined? We are now blessed
with peace, with exemption from any other party feeling
than those necessary for a due vigilance over our servants.
We have magistrates incapable of wresting the law to
the purposes of interest, ambition, or vengeance. Now
is the time to act. If those laws are in force, let them be
repealed; if they are not, dissipate all doubts. Do not
suffer them, in either case, to remain a snare to the un-wary, and instruments in the hands of a corrupt or ignorant
judge; for no oppression is so detestable as that which is exercised under the guise of justice; it is the only tyranny
which can be feared under our government. The spirit of
the people would soon rise against any open breach of their
rights. But their respect for the laws, their reverence




THE SYSTEM OF PENAL LAW.                 119
for those who administer them, make them slow to perceive the oppression that is clothed in the forms of law;
and when it is discovered, it must remain unpunished;
for the excuse of error in opinion is always ready to cover
every fault in this branch of our government. Place
beyond its reach, therefore, all those instruments which
would be equally injurious, whether brandished by folly,
or directed by malignant design; leave no doubt as to
the existence of those laws which you desire to have
enforced; repeal all those which it is inexpedient, unjust,
or impossible to execute. Be assured, legislators, of this
truth, that there can be no law of which the existence is
a matter of indifference. It must remain in your code
for good or for evil: for good, if it be a wise law and
carried into effect; for evil, whether it be good or bad,
if it remain unexecuted. In the one case the people are
taught the dangerous lesson that the best precepts may
be disregarded with impunity; in the other they are
subjected, when the danger is least apprehended, to the
unjust operation of a forgotten law.
Indeed, there is scarcely a greater reproach to the
jurisprudence of a nation than the existence of obsolete
laws (a); that is to say, laws that are none-laws that
are no rule to guide our actions, because they are unknown to, or forgotten by those upon whom  they are to
operate; but which yet may be used to punish them
for their contravention, because they are known and
remembered by those who are empowered to enforce
them, whenever the malice of a prosecutor, or the ignorance, corruption, or party-feeling of a judge may induce
(a) Ilear what the wise Bacon says on this subject: "' Dicit propheta
pluet super eos laqueos; non sunt autem pejores laquei quam laquei
legum, praesertim pmnalium; si numero immensoe et temporis decursu
inutiles non lucernam pedibus prmebeant, sed retia potius objiciant."
Aphorismus 53.-The prophet saith, it shall rain snares upon them; but
of all snares, the snares of the law are the worst, especially of the penal
law; when they have become useless, either by the accumulation of their
number or by the lapse of time, they are not a light to guide our steps,
but a net to entangle them.




120              INTRODUCTORY REPORT TO
him to draw the rusty sword from its scabbard. To apply
this to our case, as has been seen,
"We have strict statutes and most biting laws,
Which (a) for these nineteen years we have let sleep;"
statutes of such number and variety, that there is not a
state or condition in life that cannot be affected by them;
not a man in the community that has not made himself
obnoxious to the penalties of some of them. Let the
long but imperfect list I have given be perused, and
where is he who can say that some of his actions may not
be brought within the purview of one or more of the loose
and entangling definitions contained in those laws. But
even if they should never be made the instruments of
oppression, if they should remain wholly unexecuted, the
effect is scarcely less to be deprecated, and is thus well
expressed by the high authority whose aphorism I have
just referred to in a note: "- Here is a further inconvenience of obsolete penal laws; for this brings on a gangrene,
neglect and habit of disobedience upon other wholesome
laws, that are fit to be continued in practice and execution,
so that our laws endure the torment of Mezentius, the
living die in the arms of the dead! "
It is your province, by correcting the evil, to complete
what your predecessors began. This might be effected
by a general repeal; but that would be a small part of
the duty which your constituents-which the world requires at your hands.  Graviora qnanent.
(a) The slumber in which our Spanish statutes has been plunged, is
somewhat longer than Shakspeare has feigned those of Vienna to have
been, yet it may happen, that some "precise lord Angelo" may be
found,
"To awaken all the enrolled penalties
Which have like unscoured armour hung to the wall,
And none of them been worn; and for a name
May put the drowsy and neglected act
Freshly in execution."
Let our modern Claudios beware, for among the rusty Spanish statutes
is one imposing the penalty of death for the very offence which put the
gay deceiver of the play in peril of his head.




THE SYSTEM OF PENAL LAW.               121
The list of defects in our present system is but begun.
They must be faithfully exhibited to your view. The
allegation so frequently repeated, that we want no reform,
has, it cannot be concealed, had its effect on the community, on its representatives. It shall be completely
refuted. I speak with confidence because I know my
ground. The task is not a pleasant one, but it must be
performed.  Let us proceed with the detail.
The common law, to which we are referred for definition, procedure, and evidence, has, I may believe, been
demonstrated to be rather, to say the!least of it, an uncertain guide.  But what shall be said of the legislation
that in many cases gives us none (a)? Yet such is ours.
This point deserves to be the more seriously considered,
because I believe it has not hitherto attracted attention.
By the 33rd section of the act so frequently referred to
(4th May (b) 1805) it is enacted, "that all the crimes,
offences and mnisdemeanors herein before navmed, shall be
taken, intended and construed according to, and in conformity with, the common law of England; and that the
forms of indictment (divested, however, of unnecessary
prolixity), the method of trial, the rules of evidence, and
all other proceedings whatever in the prosecution of the
said crimes, offences and misdevmeanors, changing what
ought to be changed, shall be (except as by this act
is otherwise provided for) according to the said common
law."
Now although it seems sufficiently plain that the
common law is referred to only as relates to the crimes
and offehces enumerated in that act, the argument is
made stronger by the third section of the act of 3rd July
1805, being the second law on the subject of offences
(a) Bacon, a name which I love to quote, in inquiring into the causes
of the law's uncertainty, places this first on the list-" duplex legum
incertitudo; altera ubi lex nulla preescribitur, altera ubi ambigua et
obscura." Unfortunately we have both.
(b) This act is quoted in Martin's Digest, sometimes under the date
of 24th January 1805, sometimes the 4th May 1805. I believe the
latter is the true date, bnt have no means here of ascertaining it
correctly.




122           INTRODUCTORY REPORT TO
that was passed by the territorial legislature. It declares,
"that all other crimes, offences and misdemeanors not
provided for by that or the former act, should be punished,
prosecuted and tried according to the common law of
England." This guarded against the evil; but the very
next year the legislature repealed it, thereby adding an
express to the former implied declaration of their will,
that the common law of England should be applied to
those offences only that were enumerated in the act of
1805. Yet that act enumerates only certain offences,
and very many more have been created by subsequent
statutes, as may be seen by a reference to the schedule
annexed to this report. But in no one of these last is
there any reference to the common or any other law, for
the definition of the crime, the mode of procedure, or the
rules of evidence! VW hat then did the legislature intend
should be the rule to govern the courts? Did they
intend the common law? Certainly, as it is a foreign
code, they shall not be presumed to have introduced it
without some indication of that intent. The legal conclusion is, that the existing laws were intended to govern
in all cases where they are not abrogated or altered. In
that case we should have to consult Spanish authorities
for the definition of offences and the rules of evidence,
and for the mode of proceeding, so far as was compatible
with the other provisions of the constitution and statutes
of the state. Yet this has great, perhaps insurmountable
difficulties. To avoid these difficulties recourse has been
had, under the plea of necessity, to the assumption
of legislative power by the courts. They have, without
scruple and without being questioned, applied the 33rd
section of the act of 1805 to all the subsequent penal
laws; they have restored the third section of this second
act which the legislature repealed, and have defined and
tried all offences indiscriminately according to the common
law. It will not, it is presumed, be denied, that the
introduction of this section into the act was the exercise
of a legislative power, necessary in order to the application of the common law to the offences enumerated in




THIE SYSTEM OF PENAL LAW.          123
that statute. If so, it follows that nothing but the exercise of a similar power could legally apply it to offences
not enumerated in that act. But it has been so applied
to the other offences by the judiciary; therefore, the
judiciary have exercised a legislative power. But the
constitution has expressly forbidden, both by affirmative
precept and positive prohibition, in the most precise
terms that the language could afford, any such exercise
of power.
"The powers of the government of the state of
Lousiana shall be divided into three distinct departments,
and each of them shall be confided to a separate body of
magistracy, viz., those which are legislative to one, those
which are executive to another, and those which are
judiciary to another. No person being one of these
departments shall exercise any power properly belonging
to either of the others, except in the instances hereinafter
expressly directed or permitted."
I do not ascribe this exercise of powers to any improper motive. It may, without any such imputation,
be accounted for by the confused state of our criminal
laws, which forced the courts either to suffer crimes to go
unpunished, or to assume powers not properly belonging
to them, but which the proper department would not
exercise itself, and took no pains to prevent the exercise
by another.
It is thus that the assumption of unconstitutional
powers is first exercised, then excused, and in the end
insisted on as a right; and it is as essential to good
government that each department should exercise its
proper functions as that it should avoid assuming those
of another; for power is too precious to be lost. Whatever is abandoned by one is eagerly seized by the other;
and careless legislation will inevitably produce executive
and judicial encroachment.
In the case under discussion there is less cause to
inculpate the courts of law, because the question has not,
it is believed, been hitherto raised for decision; but whenever it shall be, its importance will be discovered, and




124           INTRODUCTORY REPORT TO
the inevitable result be either a solemn decision, which
cannot be supposed, that courts have legislative powers,
or a confession of that which we are now endeavouring to
establish, that a written code is necessary for the execution of the penal law. To prove this, let us suppose that
on the trial of a capital offence created by an act passed
since the year 1805, a witness should be offered who is
competent according to the common law of England, but
inadmissible under the laws which I have rapidly reviewed, either as a usurer, a comedian, a person of illegitimate birth, or as enemy of the accused (a), or a
priest (b), a minor (c) under sixteen years of age, a
relation in the ascending (d) or descending line, or a
collateral within the fourth degree, or for any of the
numerous other exceptions that exclude witnesses according to the Spanish law; by what process of reasoning
will any court come to the conclusion that they have the
right to adopt the common law as their guide in this
question? What species of testimony is to be admitted?
What makes a competent witness? are questions which
the laws of the country must decide by general rules.
Whether any particular testimony offered, any individual
witness produced, comes within these rules, are questions
for the judge to decide.
On the change of government there were laws which
governed the admission of witnesses. The new government changed these laws, as related to certain enumerated
crimes.  It was silent as to the others. What was the
consequence as to those others? Either, as I believe,
that the old law remained in force; or, if that should
not be the case, that they remained without any law
to govern them.  But in either case the common law
of England would not be applied to them without
a legislative act. The selection of that law for the
offences enumerated in the act of 1805 was a legislative act. The application of it to others must be
(a) Ant. Goim. Var. Res. 3d vol. c. 12, No. 15.  (b) Ib. No. 20.
(c) Ib, No. 14.                (d) lb. No. 16.




THE SYSTEM OF PENAL LAW.             125
one of the same character; for, as we have seen, it is
strictly, emphatically confined by that law to the offences
therein enumerated, and for subsequent offences the
judiciary have the same right to select the laws of
Hindostan, as they have to adopt those of England,
But if they have not this right, if they cannot exercise
it, is there a doubt that the legislature ought and must
do it, because there is either no rule, or the one that
exists under the laws of Spain is so monstrous, so perfectly inapplicable to our situation, that it equally calls
for renovation?  But what remedy can tile legislature
apply? Is it by the summary process adopted in 1805
of selecting  a foreign code?  During the territorial
government this could have been done; but now the
only remedy is a code that shall define the crime, direct
the procedure, and give the rules of evidence. Attention
is particularly necessary to this argument, because, unless
the reporter errs, it is conclusive as to the necessity of
the work in question.
The framers of our constitution had been witnesses to,
and had participated in the anxiety and dismay that pervaded the whole community when an attempt was made,
in the earliest stage of our political connexion with the
United States, to take advantage of an ambiguous expression in the ordinance given for our government, in
order to introduce a new system of jurisprudence (a),
totally unknown to, and the knowledge of which was
unattainable  by the people  of the territory.  They
dreaded the  common  law  of England.  They feared
another attempt to introduce it. Their escape was too
recent not to make them apprehend that in future times
the struggle might be renewed. They wisely thought
that to be free, a people must know the laws by which
they were governed. They were aware of the difficulty,
(a) To have had a share in averting this danger gives the reporter a
satisfaction that can be equalled only by his being instrumental in the
establishment of a system that may promote the honour and happiness
of the state that has honoured him with the preparatory duty he is now
performing.




126           INTRODUCTORY REPORT TO
nay, the utter impossibility of this knowledge being
acquired when the law was unwritten, or if written, dispersed through hundreds of volumes in a language unknown to three-fourths of their constituents.  They saw
the danger of permitting a particular class of men to
become the sole depositaries of this knowledge and the
sole interpreters of the laws; and they did everything
that prudent foresight could do to prevent these evils,
by inserting in the constitution the following clause:
"The existing laws in this territory, when this constitution goes into effect, shall continue to be in force until
altered or abolished by the legislature, provided, however, that the legislature shall never adopt any system
or code of laws by a general reference to the said system
or code, but in all cases shall specify the several provisions
of the laws it may enact."
By this important amendment, for which the gentleman who introduced it deserves the thanks of his
country (a), and by the section which follows it requiring
the judges in definitive sentences to refer to the particular law by which they were governed, an effectual bar
was placed to the legislative introduction of unwritten
law; and no act can now constitutionally be passed, extending the 33rd section of the act of 1805, which introduces the common law to any offences created by law
since that period. If they wish to provide rules on the
subjects embraced by that section they must enact them
specifically, that is to say, call it by what name it may
be convenient to use, they must, in effect, have a code
or a law defining crimes, a code of procedure and a code
of evidence. This wise provision, while it prevented a
repetition of the careless legislation which introduced
the common law of England without considering or even
knowing its provisions, did not prevent the adoption of
all those parts of it which have justly commanded the
admiration of the world: but it imposed the necessity of
distinguishing, of selecting, of knowing them and of
(a) Mr. Bernard Marigny is the member of the convention to whom
the state is indebted for this essential service.




THE SYSTEM OF PENAL LAW.           127
reducing them to writing; so that the people might not
only be governed by them, but might understand and
approve them.
The position, then, with which I set out on this head
is fully established: that there is no alternative but
this-the legislature must make a code, or they must
suffer the courts to legislate on subjects of the most importance to life, reputation, personal liberty, and civil and
political rights. It will be no escape from this dilemma
to say that the legislature, having defined an offence and
having designated the punishment, an implied power is
given to the court to do all else that is necessary. There
are three answers to this argument, all of them conclusive. First, the establishment of rules of evidence is
a legislative act; it cannot, therefore, be expressly transferred, much less can it be by implication. Secondly, if
a legislative power could be transferred, this power could
not, because the power of the general assembly itself is
restricted in this particular by the clause I have just
quoted.  Thirdly, if this power could be transferable
from the general assembly, they could not vest it in the
judiciary, nor could this latter department execute it, by
reason of the express inhibition to which I have referred.
As little will it avail to say that this is not the adoption of a code or system of laws which was forbidden by
the constitution, but only the adaptation of a part of
such system to a particular part of our law. The evil
intended to be guarded against was that of the introduction of laws by a general reference, without seeing and
considering their particular import; and most especially
(I appeal to all the members of that convention) against
the introduction of the common law of England, or unwritten law.  But of what avail would this provision
have been, if, by a general reference to its particular
parts, the whole might have been introduced?  The
argument then would be this: it is true we cannot
introduce the common law by a general reference to
the whole; but by taking its parts separately we may
effect the same thing, and by the same forbidden means




128           INTRODUCTORY REPORT TO
of a general reference to each of them. Thus, without
repeating or indeed knowing its details, we will by one
act say the common law rules of evidence shall be
introduced; by another, we will adopt its laws of
descents; by a third, its whole criminal law; and so of
the rest.
Leaving the consideration of these general defects in
our criminal law, we must examine its particular provisions; and here, too, we shall find so many omissions to
supply, so many faults to correct, as must show the necessity of a thorough reform if we wish to attain a system
that will do us honour, or if we aspire only to the
humbler merit of avoiding the grossest faults in legislation. A very brief recurrence to our statute book will
show that there is abundant reason to justify the declaration of your predecessors, that our present system "is
defective in many or all of the points that are of primary
importance in every well regulated state." To begin
with one that must strike the most superficial observer.
What else could be said of the system which provides no
means for inflicting the only punishment its laws denounce against the most numerous and most injurious
classes of crimes? Four-fifths.of the offences enumerated
in the statutes are punishable by imprisonment at hard
labour; yet, for more than twenty years no means have
been provided for employing those who may commit such
offences.  Two evils result from  this neglect.  The
judges are forced to pronounce a sentence which they
know cannot be carried into effect, and the offender
suffers a punishment not denounced by law against his
offence; not to speak of another consequence, which will
be enlarged upon in the introductory report to the Code
of Prison Discipline,-the incalculable evil of indiscriminate confinement in idleness.
What shall we say of this system? Shall we say that
it is so perfect as to need no amendment-that he was
rash and presumptuous who thought he could propose a
better-that the legislature which authorized the experiment formed vain theories? Or, shall we deny to the




THE SYSTEM OF PENAL LAW.          129
incongruous mass of written and unwritten law the very
name of a system; and say, that the humblest abilities
might, without vanity, aspire to propose something that
would replace it to advantage; and that the attempt to
amend it did honour to your predecessors? These conclusions will appear the more irresistible the further we
advance in the examination of our statute law.
From the year 1805 to 1819 we have fourteen statutes,
providing for the punishment of more than seventy different acts, or for the same act under different modifications of circumstance and intent; without including the
prohibitions of the same act in relation to several objects
specified in the statute —as, for example, the different
instruments, the falsely making of which is declared
forgery; besides pecuniary and other forfeitures for
infractions of particular regulations interspersed in many
other statutes.  This period comprises only fourteen
years. Yet the want of some fixed principles of legislation, the utter disregard of system and method, and an
astonishing inattention to preceding enactments, as well
as to a due proportion of punishments to crimes, have led
us in that short space of time into incongruities, the development of which must excite the wonder of those who
have believed the repeated assertions so confidently
made, that our penal laws want no amendment.
When the provisions of the projected codes are compared with the existing laws, their discrepancies will be
more particularly pointed out. Here it will be sufficient,
generally, to refer to a few instances of this species of
legislation.
When we consider the different circumstances attached
to the commission of homicide, which may characterize it
as an innocent or even a meritorious act, when done in
defence of ourselves or in the service of our country; as
excusable when the effect of accident; slightly punishable when produced by passion arising from adequate
cause; or meriting the highest penalty when coming
under the denomination of murder: we must see the
necessity of designating with the greatest precision the
I




130           INTRODUCTORY REPORT TO
different circumstances and intentions which give to
the same act the character of a virtue, an excusable fault,
a slight offence, or a crime of the blackest dye; which
entitle the accused to reward and esteem, to pity and
forgiveness, or consign him to death. Surely, if there is
any subject on which the law ought to speak in language
intelligible to the meanest capacity, in which it ought to
be accessible to all, in which there should be no doubtful
phrase, no contradictory enactments, it is this. Let us
see how far our boasted legislation complies with these
requisites.
The first act (4th May, 1805) declares, that if any
person shall commit the crime of wilful murder he shall
suffer death; and that if he commit manslaughter, he
shall be fined, and may be imprisoned at hard labour or
otherwise. The fine may be one cent or five hundred
dollars, and the imprisonment one hour or twelve years.
Here are only two kinds of homicide provided for; and,
if it be true that the Spanish laws cease to operate, this
law informs the citizens that every other killing may be
perpetrated without incurring any penalty. It is highly
important, then, to know what these terms mean. At
the time this law passed, four-fifths of the population
could understand no English; and a very few only of
the other fifth could explain the meaning of the technical
terms murderl and manslaughter. The only guide, therefore, for a large majority of the people would be the
French version of the law. There they find that the one
is "homicide premeditee," and the other "homicide non
premeditge," according to which the justifiable homicide
of a public enemy would be punished with death, and the
accidental shooting of a friend might incur imprisonment
at hard labour for twelve years. Reason would revolt at
this; and it would be scarcely a sufficient answer for the
legislator who might have been reproached with this
slovenly manner of performing his duty to say, "read
on: the 33rd section of the statute takes away all cause
of complaint. You are there referred to a sure guide in
all your difficulties. If you wish to understand these or




THE SYSTEM OF PENAL LAW.          131
any other terms in the law, you have only to consult the
common law of Englalnd."
"But you have undertaken to give us the explanation.
You have called murder premeditated and manslaughter
unpremeditated homicide. Did you intend these as definitions? If you did, they lead to the absurd consequences that have been stated. If you did not, your
language deceives us; you should have added the other
distinctive characteristics of the several offences.  In
either case your legislation is miserably defective.
Besides, is it not a mockery to refer me to the common
law of England? Where am I to find it? Who is to
interpret it for me? If I should apply to a lawyer for
the book that contained it he would smile at my ignorance, and, pointing to about five hundred volumes on
his shelves, would tell me those contained a small part
of it; that the rest was either unwritten or might be
found in books that were in London or New York, or
that it was shut up in the breasts of the judges at
Westminster-hall. If I should ask him to examine his
books and give me the information which the law itself
ought to have afforded, he would hint that he lived by
his profession, and that the knowledge he had acquired
by hard study for many years could not be gratuitously
imparted. Your law, therefore, I repeat, is absurd in its
consequences, if taken literally, and mocks us by a reference to an inaccessible source for an explanation of its
obscurities."
What could a candid man say to this reply? Every
such man must acknowledge the justice- of the reproach,
and confess that such laws are a disgrace to the jurisprudence of his country. But this is not all. How shall
we characterize the legislation that confounds, under the
same denomination of crime (a), intentional and negligent homicide; and permits the judge to punish the
same offence by the fine of a cent, or imprisonment at
(a) See the different divisions of manslaughter by the English lawinto that by sudden provocation, se defendendo, and fortuitously in the
performance of an unlawful act.




132           INTRODUCTORY REPORT TO
hard labour during a term equivalent to the usual duration
of human life; while, for premeditated homicide, under
any circumstances, according to the explanation given of
it to a majority of the inhabitants, the uniform punishment is death.
A few months after the passage of this law, the same
legislature attempted to amend it, by enacting that "all
murder by persons lying in wait, or any other kind of
deliberate and premeditated killing," or which shall be
committed in the perpetration of certain enumerated
crimes, " shall be deemed murder in the first degree, and
all other kinds of murder shall be deemed murder in the
second degree." Here all murder by premeditated killing
forms one degree; but premeditation is the only characteristic given by the former statute, and an essential one
given by the common law, in the definition of all kinds of
murder. What, therefore, is left for murder in the
second degree?
The fifth section of this act is a curious specimen of
legislative indifference. It provides that a prior offender
shall be punished as is directed by this act, or by the act
to which it is a supplement, that is, by imprisonment or
by death; but whether the alternative is given to the
choice of the culprit, to the direction of the court, or to
chance, the law maintains a most dignified silence. This
statute has been repealed, but it was not until the year
1818 that its absurdity forced itself upon the notice of
the legislature. A similar instance may be found in a
law passed the 25th March 1813, against carrying concealed weapons. By the second section of which it was
enacted, that if any one should " stab or shoot, or in any
way disable another by such concealed weapons, or should
take the life of any person, he should suffer death, or such
other punishment as in the opinion of the jury should be
just." I quote the words of this statute as an instance of
the style of legislation which put it in the power of the
jury to select any species of punishment, from simple fine
or reprimand, up to mutilation, torture and death; and
that too for giving a slight wound, or in any manner




THE SYSTEM OF PENAL LAW.          133
whatever taking the life of a person, even in self defence,
for there is no exception in the law. Yet this section
was suffered to disgrace our penal law for five years. It
was repealed in the year 1818. But the first section is
still in force; by which any one who suspects I have a
knife in my pocket, may obtain a warrant to take me
before a justice, who is authorized to have me searched,
and should the knife be found, he is obliged to make me
pay at least ten dollars to the person who gives the
important information, and as much to the state; and
this sum may at his discretion be more than doubled.
The following provisions, taken without much selection,
will suffice to show the want of proportion between
punishments and offences that now reigns in our laws.
To break the iron collar (a) of a slave must be punished
by a fine of at least two hundred dollars and imprisonment for at least six months. While the court may
punish him who kidnaps a free person with a fine of ten
cents (b); and even for a second conviction for this
odious crime there is no maximum, and the imprisonment
may be only for a day.
By another statute now in force, " if a woman shall be
delivered of any issue of her body, and shall endeavour
privately, by drowning or secret burying thereof, or in
any other way,".... "so to conceal the death thereof
that it may not come to light whether it be born alive or
not," she and those who aid, &c., shall be imprisoned not
less than five nor more than fourteen years. This is a
refinement upon the reprobated statute of James 1st,
which is not more objectionable from the severity of its
penalty than the want of principle which made the concealment of the birth such evidence of the murder as to
throw the contrary proof on the accused. But even that
statute permitted the unfortunate mother to exonerate
herself by showing that the child was born dead. Ours,
on the contrary, inflicts the penalty for the offence of
concealment, or the private burial of a monstrous or
abortive birth. That statute confines its provisions to
(a) Law 6th March 1819, section 5.    (b) lb. section 6.




134           INTRODUCTORY REPORT TOthe case of a child which, if born alive, would have been
a bastard. Ours, indiscriminate in its provisions, makes
no such distinction; neither the unfortunate victim of
seduction nor her nearest relations are permitted to
avail themselves of the accident or the dispensation of
providence, which may offer for the concealment of her
weakness; and the modest respectable matron must
expose to the world-But enough, the disgust due to the
law would be excited by the work which details its consequences, were the subject to be pursued further. It
cannot escape remark that the same punishment is incurred for the crime of drowning, which, if I understand
the language, can only be applied to a living infant, that
is denounced for interring a dead one.
A legislation equally vacillating and inconsistent with
true principles, is that on the subject of unsuccessful
attempts to commit homicide. It began by the law of
the 7th June 1806. By that law, to administer poison,
to stab, or to shoot, with intent to murder, is punishable with death. But by a prior law, to which I have
before referred, one species of murder was punishable
only by imprisonment. A strong inducement was here
offered the offender if he dreaded death more than labour,
to adopt the ferocious motto of the highland chieftain, by
making sure work.
In 1813, stabbing or shooting with any intent, if done
with a concealed weapon, was death. In 1818 this law
was repealed, and the act of 1806 remained unmodified
until 6th of March 1819. It was made punishable with
death to shoot, stab or thrust any one with a dangerous
weapon, with intent to,murder, if done by lying in wait
or in the attempt to commit any arson, rape, robbery or
burglary; and by the second section, shooting, stabbing,
thrusting with a dangerous weapon with intent to commit
murder, under any other circumstances, is punishable by
hard labour only from one to twenty-one years, a wide
field for the exercise of judicial discretion.
This act creates a serious ambiguity in each of its
sections. What is a: dangerous weapon?  A  cambric




THE SYSTEM OF PENAL LAW.          135
needle thrust into the spine is as dangerous as a sword.
Yet it can scarcely be called a weapon.
Again, a thrust with the fist of an athletic man
without any weapon at all may be as dangerous as any
offensive weapon. This result then may follow; if in
the perpetration of robbery, the offender attempt to
murder a defenceless man or a child by thrusts with his
fists, or to commit a rape and murder his victim by
endeavouring to smother her with a blanket, although
he is prevented from the accomplishment of his crime
only by the rescue of the sufferer, he escapes the penalty
of the law; but if in attempting the same crimes he
should be attacked and make an effectual thrust with a
sword in the heat of a scuffle, with intent to kill (for all
killing in the perpetration of the robbery would be
murder), lie would suffer death, although the attempt
should be abandoned as soon as it was made, or although
it was only made to defend himself from arrest.
Again, there is no positive repeal of the first section
of the law of the 7th June 1806. But the second section of the one we are considering provides, that to
shoot, stab, or thrust with a dangerous weapon, and with
intent to murder, shall in all other cases but those provided for by the first section, be punished by hard labour
only. This last enactment, therefore, is not so broad as
that of 1806, which does not contain the qualification of
a dangerous weapon; therefore, as the law now stands, a
stab with an instrument that could not come within the
description of a weapon, would now, under the first act
be punished with death, while the more heinous case of
a stab with the same intent with a dangerous weapon,
might be punished with imprisonment for one year only.
Once more let me ask respectfully whether this part of
our jurisprudence does not want revision? But this is only
one head; the same or greater defects may be found in all.
The same enacting, explaining, implied repealing and
accumulation of provisions on the same subject, until in
the short period of twenty years, our legislation has
become so confused that the people, and (the truth is so




136             INTRODUCTORY REPORT TO
evident that I shall not offend them when I add) their
representatives too, are incapable of discovering what
the law requires or forbids. The following instances
may justify my assertion.
By the act of 19th March 1818, the punishment of
accessories after the fact (a) to any crime, of course including murder, are to be punished by fine and imprisonment, at the discretion of the court; and that discretion (b)
is limited in all cases to fine of one thousand dollars and
imprisonment for two years. On the very next day a
law is passed punishing the accessories after the fact of
burglary (c) by solitary confinement for one year and
imprisonment at hard labour for five years. So that
you may aid the escape of a murderer, by our laws, at
infinitely less risk than you incur by performing the like
service to one who has, at night, only lifted the latch of
a sugar-house (d) and stolen a pint of molasses.
Larceny (e) is punished by imprisonment at hard
labour for any term not exceeding two years; while the
lesser offence, of obtaining property on false pretences,
incurs the corporal punishment of whipping and imprisonment for one year (f); and by this law, such fraud
is somewhat strangely declared to be an offence against
the public peace.
By the act of 6th March 1819, the aiding (g) a slave
to run away is punishable by imprisonment at hard
labour, not less than two or more than twenty years;
while kidnapping a freeman (h) incurs only fine, not to
exceed one thousand dollars, and imprisonment not to
exceed fourteen years.   The judge must punish the
first crime at least by two years' imprisonment, but may
suffer the greater offender to escape with a nominal
punishment.
(a) Act 19th March 1819, section 9.  (b) Ib. section 12.
(c) Act 20th March 1818, section 6.
(d) By the 5th section of the act 20th March 1818, breaking into a
sugar-house at night, with intent to steal, is made burglary.
(e) Act 19th March 1818, section 1,
(f) Act 3d July 1805, section 2.
(g) Ib. section 3.          (h) lb. section 6.




THE SYSTEM OF PENAL LAW.             137
Not to burthen this report with a longer enumeration
of these discrepancies, I have thrown into a tabular form
an account of all the statute offences with their present and
former punishments. A few other instances of incorrect
legislation in our present penal law will enforce the
necessity of reform.  One embarrassing defect arises
from the numerous dissimilar provisions in relation to
the same subject in successive statutes which contain no
repealing clauses; leaving it in many instances very
difficult to determine whether the penalty was intended
to be changed or commuted. Slave stealers, by the
act of 1805, are to be publicly whipped and imprisoned
at hard labour not less than seven nor more than
fourteen years. By the act of 6th March 1819, they
are to be imprisoned not less than two nor more
than  twenty years.  Was tile intent of the  latter
statute to take away the whipping, or only to extend
the limits of judicial discretion as to the term of imprisonment (a)?
Nearly the same difficulty occurs as to larceny. By
the first law, whipping and imprisonment in the alternative of not restoring the goods stolen, is the punishment.  The subsequent act only declares that it shall
be punished by imprisonment.
Stealing or robbery of bonds, bills or notes, is not
larceny at common law.  It is made so by statute in
England; and as larceny was to be defined by the comnmon law, not by statute, they are enumerated in the act
of 1805; and it is declared that the stealing of then
"shall be punished in the same manner, both as to
principal and accessory, as robbery or larceny of goods
and chattels. Does this relate to the punishment prescribed by that act? or is it prospective, so as to adapt
itself to any other punishment that may afterwards be
provided for larceny?  If it is not, stealing of bonds
(a) I have an impression that the learned judge of the criminal court
of New Orleans expressed a leaning towards the latter alternative.
If I am not mistaken in this, the doubt is supported by very high
authority.




138           INTRODUCTORY REPORT TO
and notes, since the passage of the last statute, is punished
differently front other larceny.
In all these instances, and they might be multiplied,
there is no express repeal of the prior statutes; and as
there is nothing incompatible between the punishments
of whipping and imprisonment, the strongest, perhaps
the only good foundation for an implied repeal is taken
away. Yet the degrading punishment inflicted by the
first law is so repugnant to the feelings of freemen, and,
I may add, in a country like ours, so dangerous to its
peace, that the rules of construction have been disregarded, and a new instance afforded in which the duty
of the legislature has been transferred to the judiciary.
They have hitherto exercised it with discretion; but
these doubtful laws may hereafter be made engines of
oppression as well as of favour.
Another evil in our present legislation is the loose
manner in which offences are defined. I will not here
repeat the objections arising from the references to the
foreign law, although they press upon the mind in every
view that is taken of the subject; but there are cases in
which even the obscure light of the common law  is
denied us. The statute of 22d February 1817 enacts,
"that every person who shall commit the abominable
crime of incest shall suffer imprisonment at hard labour
for life." Here our guide entirely fails us. Incest was
a crime unknown to the common law. During the rule
of the Puritans in England, that, and every species of
incontinence, were made capital crimes. The statute, we
are told, was not renewed at the restoration, and I am
ignorant what definition it gave to the crime. With us,
if the Spanish laws are repealed, the law must be a dead
letter, or the judges must make a law explaining the
term. If the Spanish laws are not repealed, we nmust
look to them for the definition; and if they are, we nmay.
But what will in either case be the serious consequences?
In the definition of this crime by that law we have seen
that incest means a carnal connexion between parties
related, either by affinity or consanguinity, to the fourth




THE SYSTEM OF PENAL LAW.          139
degree; and as the degrees are counted by the canon law,
it would bring within the penalties of this law not only
the children but the grandchildren of brothers: and even
if we look to the English law of matrimony, as well as to
the Spanish statute, the sister of a wife is included in the
prohibition.  After the death of the wife it is not
uncommon for the husband to marry her sister. Suppose
such a connexion to be lawfully made in New York, and
the parties remove to New Orleans, where they continue
to cohabit. By adopting either of these definitions this
is the abominable crime(a) intended by the statute, for
which both of them must be consigned to the penitentiary for life. What rule shall we resort to in order to
give efficacy to this highly penal statute? The law gives
no guide; and it would be monstrous to suppose the
unconstitutional intent, that it should be framed or
adopted by the judges.
By the act of the 7th June 1806, any judge, justice of
the peace, sheriff, or other civil officer, who shall be
guilty of any misdemeanor in the execution of their
respective offices, shall suffer fine or imprisonment, or
both. Now, without repeating the argument formerly
used, that the reference to the law of England does not
extend to offences under this law, let us ask, What is
misdemeanor?  Christian, in his notes to Blackstone,
says, "in the English law, misdemeanor is generally used
in contradistinction to felony; and misdemeanors comprehend all indictable offences which do not amount to
felony." But, by our law, there can be no indictable
offence but those created by statute; but every statute
that has created an offence with us has also prescribed
the punishment. What, therefore, has this law to operate
upon? Nothing, if it relate only to offences that were
indictable before; but if it mean something else, and is
intended to create a new offence, that offence ought to
have been defined; or else the court have not only the
judicial task of apportioning within the prescribed limits
(a) Vide 7 Part. tit. 18, 1. 1.




140           INTRODUCTORY REPORT TO
what shall be the punishment, but also the legislative
duty of declaring what acts shall be misdemeanors.
Other instances of this defect might be selected, but I
hasten to close the catalogue with pointing out another
glaring and dangerous fault in our present laws: the
almost entire abandonment to the judiciary of that part
of the legislative duty, which consists in designating the
punishment that shall be inflicted for each species of
offence. This is a function perfectly consistent with that
which, in all good jurisprudence, is committed to the
judge of apportioning, within certain limits, the quantity
of punishment to the individual case. A wise legislator
so arranges and classifies the offences he means to punish,
that, as far as may be practicable, a slight variation from
the punishment assigned to the designated crime may
accommodate it to the least degree of evil that can be
attached to its commission; he gives this discretion in all
cases in which different shades of guilt may be supposed
to have attended the same act; he withholds it only in
cases where the least degree of depravity deserves the
full punishment that is denounced, and it is not convenient to increase the penalty against the more immoral
offenders, but he throws all those shades of crime that he
can foresee into as many different classes as he can conveniently arrange, and he restricts the discretion he gives
to the judge within the narrowest limits in which the
distribution of individual justice will permit to be exercised. The reasons for this are evident and conclusive.
Every penalty for the infraction of a law ought to be
certain. Where the same act may be punished by a
slight or a heavy penalty, the offender will always calculate on the slightest punishment; and the infliction of
the heaviest will, for the most part, be considered as an
oppression. But there is a more serious objection to
giving a wide extent of discretionary power to the judge.
To a certain extent his decrees may be considered as
having the effect of ex post facto law, for the punishment
is not determined until the offence is committed. The
prohibition of the law, indeed, existed before, but the




THE SYSTEM OF PENAL LAW.          141
sanction is created afterwards.  Hatred, envy, and the
other malignant passions may sometimes influence the
mind of the judge; avarice may corrupt it; or the more
amiable motives of friendship or compassion may give it
an unconscious bias in the exercise of his functions; but
the legislator, who cannot know when he frames his law
upon whom its penalties may fall, can neither incur nor
merit these suspicions. He, therefore, ought to assign
the punishment to the offence; and, in certain cases,
leave to the discretion of the judge a power of modifying
it to the circumstances of the offender. In pecuniary
penalties, a considerable range must necessarily be given
to this power; for a fine that would be ruin to one, would
not be felt as a punishment by another. In a less degree
this applies to simple imprisonment, and least of all to
penitentiary punishment; but the difference in their
nature between the two first and the last of these punishnents is so great, that it very rarely, if ever, ought to be
placed in the power of a judge to inflict the one or the
other, at his discretion. The circumstances that would
render the last proper for offences in which the first
would generally be an adequate punishment, ought, if
possible, to be detailed, and form a different class of
crime. The inefficiency of pecuniary fines to punish the
rich, without putting them so high as to ruin the poor,
renders it indispensable to place the alternative between
fine and simple imprisonment in tile hands of the judge.
Let us now examine how far our present statutes conform to these principles.
Kidnapping a free person is a crime, which, being destructive of personal liberty, is in the highest degree
injurious to society; and moreover supposes a confirmed
malignity of heart, and which of all others would seem
to admit of no alleviating circumstances; yet the statute
permits the court to fine the offender one cent only or to
extend it to one thousand dollars, and to add imprisonment at hard labour for fourteen years.  Is not this
completely giving to the judge the power of legislation
after the fact, upon an offence of the deepest dye? He




142           INTRODUCTORY REPORT TO
may suffer an offender to escape with a nominal fine, or
he may imprison him for a term more than commensurate,
perhaps, with his chance of life. Let it be remembered,
too, that this is a law for the security of personal freedom; and contrast it with the penalty for stealing a
slave, which, by a prior section of the same law cannot
be less than two years at hard labour. But here again,
though the criminal cannot escape, as in the other instance, with impunity, his punishment may at the pleasure
of the judge be increased tenfold, by a sentence to twenty
years imprisonment at hard labour. And it may once
more be asked, what circumstance in the crime of stealing
a slave can make two years' imprisonment a sufficient
punishment for one offender, while twenty is not too
much for another?
I can, in this instance, imagine two answers to this
question, but each of them disclose a fault in legislation
equally grave, at least, with the one they might otherwise excuse. The first is that the legislature have not
provided, as they might have done, for the case of a repeated offence, and that the higher grades of punishment
are intended to supply this defect.  But if such was
the intention it ought to have been expressed; the court
then would not have had the power which they now
have of awarding the same punishment for a first, that
was intended for a second or third offence. Secondly,
it may be said that the offence described in the statute is
not only stealing a slave, but aiding one to escape from
his master, which are two very different offences-one
deserving the highest, perhaps, and the other the lowest
penalty of the law. If this be so, it enhances instead of
excusing the incongruity of the act, by confounding two
distinct offences in the same clause, and permitting the
court to punish one offence by the penalty intended for
the other.
Take another instance from the same act. To shoot,
stab or thrust by lying in wait, or in the perpetration or
attempt to perpetrate arson, rape, robbery, or burglary, is
death, if done with intent to murder and with a dangerous




THE SYSTEM OF PENAL LAW.          143
weapon; but if done with the same intent to murder
but not by lying in wait, or not in the perpetration of
either of the crimes above enumerated, it may be
punished by simple imprisonment for one year only, or
by imprisonment at hard labour for twenty-one years.
According to the English definition of terms, here can be
no gradation of crime. The party, if convicted, must have
given the stroke not in the heat of passion only, for then
it would be a different offence, but with the deliberate
malicious design to murder.  The design must have
failed not from any change of purpose in the offender,
but contrary to his will. When combined with an intent
to commit certain crimes, we see that there is no discretion left to the judge: the punishment is death. Yet,
when the same offence is combined with the intention to
commit any other crime, perhaps not less atrocious, one
year of simple imprisonment may be deemed a sufficient
penalty. To exemplify the operation of this law: if, in
the attempt to set fire to a building not worth five
dollars(a), the offender, with intent to murder, should
shoot at and wound the person who discovers and
prevents him, there is no discretion; the punishment is
death.  But if he in like manner wound the person
who prevents him from assassinating his father, or
from poisoning a whole community, it is in the power
of the court to let him escape with one year's simple
imprisonment.
This example is taken, almost without selection, from a
system which is considered by some as too perfect to
need any amendment! We must be at a loss in this
species of legislation, however, what most to admire;
the severity which punishes the attempt to commit a
crime with the same awful penalty that it inflicts on its
consummation; the confusion of principle which thus
punishes the attempt to commit the highest crime because
it is made in the perpetration of an inferior offence; the
(a) By the act of 22d February 1817, burning any building is made
arson.




144           INTRODUCTORY REPORT TO
want of judgment and indifference with which the
selection of these lesser offences is made; or the jealous
denial of discretionary power to the judge in the one
instance, and the prodigality of confidence with which it
is lavished on him in the other. The table at the end
of this report will give so many examples of this defect
in our system, that I need not multiply them here.
It might seem an invidious task to proceed and
develope the evils that pervade our penal jurisprudence,
from which, however, I should not shrink were it necessary. Enough has been said to show:
That as respects certain crimes, the law to which we
are referred for their definition, prosecution and the
evidence required on their trial, is not only in itself uncertain, but is placed entirely beyond the reach of the
people.
That even that rule, uncertain and difficult of access as
it is, has not been provided for offences against any of the
statutes passed since that of May 1805.
That if a long list of oppressive and absurd penal laws,
forming a part of those by which the country was
governed prior to the cession, are not now in force
according to the strictest construction of law, at least
reasonable doubts may be entertained on that subject,
and that in bad times they may be made the instrument
of oppression.
That our penal statutes remedy none of these defects:
They repeal none of the ancient laws:
They give new penalties for offences punishable by
former statutes, leaving it doubtful whether they are
intended as substitutes for the old punishments or as
additions to them:
They punish slight offences with undue severity, and
impose inconsiderable penalties on more dangerous
crimes:
They give in some instances to the judiciary a discretion trenching on legislative power, and wholly deny
it in others where justice and humanity requires its
exercise:




THE SYSTEM OF PENAL LAW.         145
They leave unpunished many acts and omissions injurious to society, while some others are made offences
which might be repressed by public opinion or private
suit:
They are multiplied without necessity on the same, or
different modifications of the same offence; giving occasion frequently to doubts whether the new statute is
intended as a substitute for or an addition to the old:
They are deficient in precision of language and in the
order required by proper arrangement.
Such laws are unworthy of an enlightened, and dangerous
to a free people; and if you had not given the pledge
contained in your law of 1820; if you had not attracted
the attention and excited the hopes of the good, and the
wise, and the liberal throughout the civilised worldattention which is still earnestly fixed upon you! hopes
which you cannot without dishonour fail to realize; if
you could be insensible to the noble distinction of
emerging from the subordinate rank of the youngest
member in the union, taking the lead in a most important reform, making by your example a new era in
the history of penal jurisprudence; if you could consent
to renounce the glorious privilege of conducting your
country to the best pre-eminence among nations, and
associating your own names with those of the benefactors
of mankind; if you could be influenced by the timid
fear of innovation or the senseless clamour of prejudice
to throw away this rare occasion of founding a glorious
reputation for yourselves and for your country, on the
solid and permanent basis of public good; if it were
possible for you to be blind to these advantages, deaf to
these arguments, yet you could not, without an entire
abandonment of official duty, any longer delay to remedy
the evils which are thus brought to your view, and others
as great which cannot escape your discernment.
Legislative functions are in the most ordinary times
attended with high responsibility. Yours, from the duty
which your predecessors have imposed upon you, are
peculiarly so. From the performance of this duty there
K




146            INTRODUCTORY REPORT TO
is no escape. The defects of your penal laws are arrayed
before your eyes. Former legislative acts have declared
that they exist, and they have established principles and
laid down rules by which laws are to be framed for their
removal. Those laws are now submitted for your consideration. You cannot avoid acting. It is impossible
to say that the evils are imaginary. You must, then,
either declare that the principles for correcting them,
heretofore unanimously established by the representatives of the people, are erroneous, or that the plan prepared is not drawn in conformity with them. In either
alternative the duty of correcting the principles or reforming the work is one that must be performed. For,
disguise it as we may, it is a truth which must be told
and ought to be felt; that, circumstanced as you are,
should you shrink from the performance of these duties,
to you will be attributed the future depredations of every
offender who escapes punishment from  the ambiguity of
your laws; the vexations of all who suffer by their uncertainty; the general alarm caused by the existence of
your unknown and unrepealed statutes; the depravity of
those who are corrupted by the associations into which
they are forced by your prison discipline; the unnecessary and violent death of the guilty; and, worse than all
this, legislators! the judicial murder of the innocent who
may perish under the operation of your sanguinary laws.
All this, and more will be laid to your charge (a), if you
do not embrace the opportunity that is afforded to reform
them; for the continuance of every bad law, which we
have the power to repeal, is equivalent to its enactment.
Whether the mode of reform now offered is the one most
proper to be adopted is, with unfeigned diffidence, submitted to the superior wisdom of the general assembly;
but that some change is necessary, is boldly and without
fear of contradiction advanced as an irresistible conclusion from the view that has been taken of the state of
(a) " Lawgivers should reflect that they are immediately, and in effect,
the executioners of every fellow-citizen who suffers death in consequence
of any penal law." —Eden. Penal Law.




THE SYSTEM OF PENAL LAW.                147
our penal jurisprudence.   Of what nature  shall that
change be, and to what extent shall it be carried, are
questions which come now to be considered. A repeal of all
the Spanish penal laws, and of such of our own statutes as
throw any uncertainty in the construction of those which
we choose to retain, would relieve us of part of the difficulty; but this would be a palliative, and give us only
a partial relief.  Other cases must be provided for by
new statutes; and what security can we have, while this
patchwork system continues, that in a few years the same
or greater incongruities will not be found in your laws?
But supposing this difficulty to be surmounted or not to
exist, a greater remains. Where are we to look for our
rules and forms of proceeding, from the arrest to the
execution? In what statute are contained the rules of
evidence, and where shall we find the regulations by
which our penitentiaries and other prisons are to  be
governed? The Spanish laws of procedure, if they are
unrepealed, do not fit our institutions; their rules of
evidence, we have seen, will exclude nearly all testimony
but that, forced from the lacerated limbs of a tortured
accomplice: and their prison discipline we surely shall
not be tempted to establish. We cannot again resort to
the concise but comprehensive legislation formerly employed. We cannot refer to and adopt the common or
any other law, either en masse or generally, on any given
branch of jurisprudence.   That door is constitutionally
closed. No more legislation by reference. This device,
excusable from necessity (b) in the infancy of our political
existence, is wisely prohibited to our maturer understanding. Representatives can no longer jeopardize the
(b) The first legislative council-highly respectable men, but not
qualified by their education or pursuits to the task of legislation-did all
that could be expected from them. They called to their assistance in
this branch a gentleman (James Workman, Esq.) whose natural as well
as acquired powers eminently fitted him for the task, and whose principles and integrity always direct his exertion in the public service. His
high professional as well as private character justified the choice. But
they committed the great error of limiting him as to time. What human
exertion- could do, he performed. He could not, as I know he wished,




148             INTRODUCTORY REPORT TO
fortunes, reputations, and lives of their constituents by
the use of an unintelligible phrase; they must understand and express what they mean; they must do it
clearly and in detail. Foreign laws can no longer be
imported by the package, or described in the act of
introducing them as goods are in the bill of lading,
" contents unkno'wn;" but in the imperative words of the
constitution, the general assembly "shall in all cases
specify the several provisions of the laws they may
enact."
On these parts of the subject then-and they form
three-fourths of the system — the question is reduced to
one of mere form.  We must have detailed laws.  Shall
they be framed into codes, or dispersed in different
independent statutes? By whatever name they may be
called, you must enact rules and prescribe forms; you
must provide laws to regulate the admission and weight
of testimony, and a plan for the government of your
prisons.
The advantages of having these reduced to order,
under proper heads, and making them component and
consistent parts of the same system, are so obvious, the
state has already derived so much benefit from a similar
improvement in the civil branch of its jurisprudence, that
it would scarcely seem necessary to say anything on this
subject; but as this part of the plan has not escaped
censure, it may be proper to offer a very few and very
brief remarks, to show its utility.
Laws, to be obeyed and administered, must be known;
to be known they must be read; to be administered they
must be studied and compared. To know them is the
right of the people. Their administration is the duty of
the magistrate. But that mode which with the least
trouble, in the shortest time, and at the least expense,
offer a complete system. All he could give was a general summary, and
a reference to other laws for cases unprovided for. It is to be regretted
that full scope was not given to the talents of this gentleman; the
humbler exertions of those now employed would have then been rendered
unnecessary.




THE SYSTEM OF PENAL LAW.                 149
brings the enjoyment of this right and the performance
of this duty within the reach of those to whom they are
appropriated, that mode is the best; and were two
systems submitted to our choice, we should, for the
purpose of making a selection, only have to compare
them and determine in what degree they severally were
calculated to produce these effects. But here the question
is not which of two systems is the best; but whether it
is better to have a system or none; for there is not, in
our present criminal legislation, the least appearance of
plan or arrangement. Yet if this character deserves the
epithet which is given by the poet, when he calls it emphatically "lucidus ordo," how  can we expect that the
necessary light will be shed on our laws without it?
A representative is instructed by his constituents, or
led by his own observation, to bring in a bill to repress a
prevailing vice. A preparatory step is to know whether
it has already attracted legislative notice. To discover
this he must examine all the acts concerning crimes and
punishments, for the titles of none of them designate
the particular offence which they forbid. He, perhaps,
finds a provision on the subject, crowded into a section (a)
with others to which it bears not the least relation. But
has it not been repealed or modified? Another painful
search in which he discovers a second law(b). Is it consistent with or repugnant to the first? Another question
which he has not the time, or skill, or patience to resolve;
and he brings in a third bill to increase the doubts and
perplexities of his successors.
(a) See the 28th and 31st sections of the act of 4th May 1805. In
the first, breach of prison, taking a reward to return stolen goods, compounding felony, and conspiracy to indict an innocent man, are confounded together in a clause not longer than this note, and all these
offences are subjected to the same penalty. In the second, rioters, breakers
of levees and libellers, are most heterogeneously mixed.
(b) See the several acts concerning forgery, larceny, burglary, &c.
No reference is made to them here by title or date, that the readers
of this report may, in the search for them, and in the task of reconciling
them after they are found, have a small specimen of the difficulties
mentioned in the text.




150           INTRODUCTORY REPORT TO
Is the task easier for the magistrate? Called on, we
will suppose, to perform one of the most ordinary functions
of his office, in which he must determine whether the law
requires him to deprive a fellow citizen of liberty;
whether he has a discretion to discharge him on bail, or
whether he is bailable of right. He first consults the
digest of our laws up to the year 1816, and in it he
searches in vain for such a title as bail.  Under that of
justice he finds something, but it is only the beginning
of his labour. He is there told that if the offence be
" not punishable by death, or not exclusively cognizable
by the superior court," that he must take bail; and afterwards in the same section, that if the offence be punishable by death, that he must commit the accused. But
what is to be done with him if the crime be not punishable in that manner, yet is one of those of which the
superior court had exclusive cognizance, is not said. He
cannot under this law take bail, for it is a case excepted
by the first clause. He cannot commit; for the authority
is not given by the second, which is confined to the two
cases of crimes punishable by death, and a refusal to give
security. First difficulty for the magistrate. He happens
to look into the constitution, and he finds, "that all
prisoners shall be bailable by sufficient securities unless
for capital offences;" how shall he reconcile this with the
law, which excludes other offences, namely, those which
are exclusively cognizable by the superior court? Second
difficulty for the magistrate.  When these are surmounted, he must inquire what is a capital offence, and
what offences are exclusively cognizable by the superior
court? This leads to an examination of all the penal
statutes. As there is no classification, no order, not
even a general index, he must examine every law and
every section of every law; for, as we have seen, our
statute offences are strangely associated, and there is
no knowing where the provision he seeks for may be hid.
Third difficulty for the magistrate. But we will suppose
him a persevering intelligent man, and that this also is
conquered. He has another not less stubborn in his




THE SYSTEM OF PENAL LAW.               151
way.   If the  offence  in  question  is one  of those
enumerated in the act of 1805, he has to look to the
common law of England for its definition, for the rules of
evidence which he is to take, and for all those proceedings which are not among those prescribed in the act. If
it be an offence against a statute of a subsequent date,
he has no rule, and neither Burn, nor Blackstone, nor
Coke himself; can tell him how he is to proceed.
As to the citizen who is neither representative nor
magistrate, I need not enumerate the difficulties that
stand in his way, for he never attempts their encounter;
and it is no bold assertion to say, that not one in an
hundred, even in the educated part of the community,
can, in the nature of things, have even a superficial knowledge of the criminal laws by which he is governed, and
which he is expected to obey.
All these and a thousand other evils might be avoided
by a simple arrangement of the penal law under its different heads, and in short sentences; where every thing
required to be known might be found in its place, and
might be understood when it was found; where the eye
of the legislator (a) might, at one comprehensive glance,
discover, from what was done, what ought to be supplied,
corrected or restricted; where magistrates could find
simple directions for the performance of their duty;
judges, in the precise language of the law, see the limits
and extent of their discretionary powers; jurors learn
how they are to act, so as neither to abuse nor surrender
their important privileges; citizens how to defend their
own rights and protect those of others; and the whole
community acquire the knowledge of that which all may at
some(b) time or other have so high an interest in knowing.
(a) " The enacting of penalties to which a whole nation shall be subject, ought to be calmly and maturely considered, by persons who know
what provisions the laws have already made to remedy the mischief
complained of."-Bl. Corn.
(b) The observations of Blackstone, repeating and enlarging on what
was so happily expressed by Sir M. Foster, although frequently quoted,
cannot be too often repeated for the use of all legislators, who too readily




152               INTRODUCTORY REPORT TO
The consideration of expense, too, though of less importance than the others which have been urged, is not
without its consequence. Every session of the legislature
produces from sixty to an hundred laws; three-fourths of
them private acts; and one or two on an average which
have some bearing on the penal law. But they are all
published in the same volume; so that whoever wishes
to possess the statutes on that subject must go to the
expense of a whole set of the laws, and think himself fortunate if he can procure them, for the greater part are
now out of print; and should duty or inclination induce
him to wish for a more perfect and not less necessary
knowledge of this branch of our laws, he must procure a
common law library at an indefinite expense. All this
could be avoided by the adoption of a system in which,
without trouble and at a small expense of time or money, the
whole penal law would be placed within the reach of all.
No one can be blind to the incalculable advantages our
state has derived from its civil code. Yet that code is
imperfect, and  must  necessarily  be so.  The  endless
variety and ever changing nature of contracts and other
civil relations must always make it as difficult to frame,
as it must be incomplete, after the utmost care in its
construction. But a penal code is susceptible of a nearer
approach to perfection. Nothing being an offence but
imagining themselves and their connexions beyond the reach of any
operation of the criminal laws, pay little attention to the evils which
they may produce to the community at large. " The knowledge of this
branch of jurisprudence," says this celebrated commentator, "which
teaches the nature, extent and degrees of every crime, and adjusts to it
its adequate and necessary penalty, is of the utmost importance to every
individual in the state; for no rank or elevation in life, no uprightness
of heart, no prudence or circumspection of conduct should tempt a man
to conclude that he may not at some time or other be deeply interested
in these researches. The infirmities of the best among us, the vices and
ungovernable passions of others, the instability of all human affairs, and
the numberless unforeseen events, which the compass of a day may bring
forth, will teach us, upon a moment's reflection, that to know with precision what the laws of our country have forbidden, and the deplorable
consequences to which a wilful disobedience may expose us, is a matter
of universal concern."-4. BI. Com. p. 2.




THE SYSTEM OF PENAL LAW.         153
doing that which is forbidden, or omitting to do that
which is enjoined by the law; it follows that as the law
can only enjoin or forbid by the use of language, there
can of necessity be nothing penal but that which is not
only foreseen, but expressed, by the legislature: in other
words, that which is contrary to written law; and whenever an act is not thus forbidden or enjoined, there can
be no punishment for doing or for omitting it. If, therefore, the greater difficulties of framing a civil code have
been surmounted so far as to render it an acknowledged
blessing to the country, why should objections be raised
to the easier operation of making a written system of
penal law?
Other general objections, which apply to any written
code that could be proposed, have been urged, and must
be answered before we consider the particular provisions
of the system now offered. They are:First, that it is an innovation, and therefore to be
avoided.
Second, that we suffer no inconvenience from the present state of our law.
Third, that it will require much time and trouble to
become acquainted with a new system.
Fourth, that it may be good in theory but bad in
practice.
Fifth, that the terms of the new code will require to
be explained by judicial decisions and commentaries,
which will produce the same or a greater accumulation of
authorities than are now complained of in the common law.
1. The hacknied objection against improvements that
they are new, amounts to no more than that they are
improvements; and the fallacy has been so often exposed
that the perseverance of those who still use it is truly
wonderful, and would deserve our admiration in a better
cause. Their objections hold the very reverse of the
wise king of Israel's doctrine, that there is nothing new
under the sun. With them everything is new, and they
use the epithet as synonymous with bad, or at least with
dangerous. But the truth is, that with us a bcdy of




154           INTRODUCTORY REPORT TO
written, to the exclusion of traditionary laws, is no innovation. We had them before the cession, and our first
care afterwards was to provide them better suited to our
circumstances in civil cases. An experiment in any of
the occult sciences is said to be most successfully made,
when the desired effects have been produced under the
most unfavourable circumstances.  It is the same in
legislation, and we may consider the favourable result as
completely ascertained; for our experiment has been
thus made. It has succeeded in the most difficult branch;
succeeded under every disadvantage of imperfect execution, and in opposition to professional and national prejudices; succeeded, too, so completely, as to silence every
objection to the measure itself, and leaving none but to
some of the details which more mature revision may
remove. This, then, is no further an innovation, than as
it applies the same remedy that has succeeded in the
complex case of the civil, to the simpler one of the
criminal department. It is, on the contrary, the removal
of one which was formerly made-the mischievous and
dangerous reference to a foreign and unwritten code;
and, indeed, there can be no change which does not
destroy something that was itself, when first introduced,
an innovation.
The truth is, that by repeating a word or a phrase very
frequently, and using it always in a bad sense, an indefinite idea of evil gets attached to it, which makes it a
very convenient instrument in the hands of those who
are at a loss for more legitimate weapons in argument.
This is the case with the word in question; and many
excellent measures have been defeated merely by repeating it, accompanied by some gesture of disapprobation,
and reinforced sometimes by the sage observation of
"good in theory but bad in practice," a phrase of equal
import, which we shall presently analyse. In the meantime it is put to the recollection of every member of the
honourable body to whom this report is addressed,
whether these precise words have not frequently been
used as objections to the measure now proposed?




THE SYSTEM OF PENAL LAW.                 155
If the objection were that it is a bad or a dangerous
innovation, its merits would immediately  come under
discussion; and this ought to be the object of every one
who proposes a change. Of this he would have no right
to complain; and the question ought to be so stated as
to throw upon him the burthen of showing the expediency and practicability of the measure he advocates;
for there is no doubt that every change of laws, or the
manner of administering them, must be attended with
some inconvenience, and is, therefore, to be avoided.
And he is justly to be reproached  as an idle or mischievous pretender, who proposes any change without
being able to show, not only that it would be useful if
adopted, but that it is practicable, and that its advantages will more than compensate the evils of the
operation. But he has a right to expect that a good and
necessary measure will not be rejected on the vague
charge of innovation, which, being strictly true as applied
to every change, cannot be denied, and is hurtful only
from the improper meaning affixed to the term (a).
2. The next general objection is, that there is no
necessity for a change; the peace of the state is as well
preserved as that of any other in the union; crimes are
not more frequent; justice is well administered; and if
any evils should result fronm our present system, it will
be time enough to correct them  when they arise.  How
much of truth there is in the allegations by which this
(a) The man who has thrown more light on the science of legislation
than any other in ancient or modern times, speaking of this kind of
objection says, " a few words then are necessary to strip the mask from
this fallacy: no specific mischief, as likely to result from the specific
measure, is alleged; if it were, the argument would not belong to this
head. What is alleged is nothing more than that mischief, without
regard to the amount, would be among the results of this measure. But
this is no more than can be said of every legislative measure that ever
did or ever can pass. If then it be to be ranked with arguments, it is
an argument that involves, in one common condemnation, all political
measures whatsoever, past, present, and to come; it passes condemnation
on whatsoever in this way ever has been or ever can be done, in all
places as well as all times."-Bentham's Book of Fallacies.




156           INTRODUCTORY REPORT TO
objection is supported may be determined by referring
to a former part of this report, in which the present
state of our criminal jurisprudence is detailed.  No
comparison can with justice be made between the situation of other states in this respect and ours. With them
the common law is indigenous; they have grown up
under it, and modified it to their wants and conveniences.
They have not the embarrassment arising from the laws
of foreign countries unrepealed among them.  Their
people speak all the same language, and are familiar
with all the technicalities of the law. Yet without these
pressing inducements, many of them have reduced their
criminal code into something like system.  A large
majority of them have adopted the penitentiary plan,
and have given their laws the shape it requires; and the
legislature of one of the largest and most influential
among them is now occupied with the revisal of all
their laws, including the criminal code, and throwing
them  into a methodical form.  But whatever be the
comparative situation of ours with other states, as to the
condition of their penal laws, we know that ours are
extremely defective; and although the body politic can
move on in spite of these defects; although anarchy
does not reign, and the laws, bad as they are, curb
offences in some degree, we should scarcely be justified
to ourselves, to our country, or to our God, for neglecting the means in our power to remedy the existing
and prevent the future mischief of a system so extremely defective as our own. The suggestion that all
must be right because we do not see and feel the evil in
our own persons, creates a fallacious security, and, it
may be, a fatal one. If it were true that no evil has yet
arisen from the effects of a system which we see must
eventually produce it, we -should bless God, and hasten,
before it is too late, to prevent those ills which we cannot
compensate after they have been suffered. To defer it
is as wise as to wait until some traveller has been lost in
the torrent that crosses the way, before we build a bridge
to pass it.




THE SYSTEM OF PENAL LAW.                 157
But is it true that no evil is already felt?  Is it only
to prevent future, not to remove present mischief that
we are called on to legislate? To answer these questions
we must look to the general operation of our laws on the
character and morals of the whole community as well as
to their particular application. Nothing in a free government can be a worse symptom than an indifference to bad
laws, because we do not suffer by their immediate operation. In the people it evinces a selfish feeling, a carelessness of the welfare of others, and an insensibility to
public good, destructive of every patriotic sentiment.
This dangerous apathy is created and fostered by suffering the existence of impolitic or oppressive laws,
although circumstances may not have called for their
application. We become familiar with them, and learn
to consider as innocent that from which we feel no present inconvenience; and, presently, as necessary that
which has so long continued; and when, in evil times,
these instruments, ready fashioned for the hand of oppression, are brought into operation, it is illegal to resist,
and we know not how to avoid the stroke. But in a
community such as ours, there will always be a large
proportion who have understanding enough to see and
fear the danger. To those this apprehension is a continued evil, attended with the humiliating sensation of
having life, liberty, reputation, or property at the disposition of another (a), which must always be more or less
(a) In some memoir of the reign of Louis XV. we read of a courtier
whose duties called him very frequently about the person of the monarch
with whom he was a kind of favourite; but far from enjoying this distinction with pleasure, he was observed always to be extremely agitated
in the royal presence. On being asked by a friend to account for this
feeling, he said, " I have indeed every reason to be satisfied with my
treatment; but whenever I am in company with the king, I cannot
avoid saying to myself, there stands a man who whenever he pleases may
chop off my head or bury me alive in the Bastile. Judge whether with
these reflections I can be happy." The existence of bad laws must have
the same effect upon every considerate citizen, that the presence of his
master produced on the disturbed faculties of the courtier. The sword,
though it never fell, destroyed the festivity of Damocles.




158             INTRODUCTORY REPORT TO
the case under any but a good system  of penal laws.
There is, then, evil, positive evil, the evil of political
degradation or constant apprehension, even though the
laws should never be executed.  But that is not the
case; they have a general, active, and most pernicious
operation; one that never for a moment ceases, and for
the continuance of which every legislature that meets
incurs a most awful responsibility. The only punishments, with the exception of death (a), now inflicted, are
fine and imprisonment. To some crimes the law adds
hard labour; but as no means are provided for inflicting
this punishment, the only confinement that is suffered is
one of idleness, debauchery, and vicious association. Of
all punishments this is the most unequal and most injurious to society and to the individual. As this subject
will be fully discussed in the preliminary report on the
Code of Prison Discipline, it is not now intended to
enter into the reasons which conclusively show that the
laws which permit or direct the indiscriminate association of the innocent with the guilty, before trial, and of
those affected with different degrees of guilt, after condemnation, are themselves the great causes of the depravity which they profess to punish.  Such laws are
ours; such are and always will be their effects; and you,
legislators! you have collectively the power to remove
this evil, to repeal these laws, to replace them by those
which are better —worse you can scarcely substitute.
Each of you, individually, may cast off the responsibility
of their continuance, by an earnest, sincere resolve to
adopt what is good and amend what is erroneous in the
system that is proposed; and by rejecting with disdain
the false, and fallacious, and dangerous lullaby that is
sung to your consciences, that all is well. All is not
well! The general operation of your laws destroys the
morals of the people, saps the foundation of your liberty,
(a) Whipping maintains, as we have seen, an existence of doubtful
authority on the statute book, and the pillory is prescribed as a specific
against the disorder of one offence only; neither, however, have, I believe,
been adrministered of late years.




THE SYSTEM  OF PENAL LAW.                159
and is calculated to spread general alarm. By their particular operation, they endanger the safety of the innocent and favour the escape of the guilty. These last
characteristics will be made more apparent in considering
the particular provisions of the different codes, more
especially that of procedure.  Here it will be sufficient
to indicate that the severity of some of your penalties,
disproportioned to the offence, and repugnant to the
feelings of the people, always have and always will
induce witnesses to avoid prosecuting, jurors to acquit
against evidence, judges to recommend to undeserved
clemency, and the pardoning power to be indiscreetly
exercised: that the law which has been prescribed for
criminal proceedings, in certain cases, by legislative
authority, and adopted without any authority at all in
others, is eminently  calculated for the escape  of the
guilty, by the numerous objections which it admits to the
forms of proceedings: that if instances are not produced
to you of individuals suffering innocently, you are not,
from thence, to conclude that such cases do not exist;
for no act being guilt, but one that is intended to be
forbidden by the law, whenever that is so ambiguous, or
its definition so loose, as to render it doubtful whether
one act or another conies within its intent, the chances
-why is it necessary to use this term in speaking of
that which  ought to  exhibit moral certainty?-the
chances of a decision in accordance with, or contrary to
the meaning of the legislator are equal, and of course it
is as probable that the penalty may fall on the head of
the innocent, as of the guilty (a): and, finally, that the
(a) The organization of our criminal courts gives a good reason why
instances of erroneous decisions cannot be produced. There is no legal
mode of examining them —no review!-no appeal! Eight independent
judges, each gives his own construction on a mass of laws, the most liable
to misconstruction, without any means of comparing or reconciling them.
The reporter has not ventured to propose in this system a remedy for
this most flagrant evil. He once proposed it, and the bill is on the
legislative files. The double influence that defeated it, is still in force.
It exists in human nature. Few men like to have their errors exposed,
and as few like the trouble of correcting those of others, without additional compensation.




160            INTRODUCTORY REPORT TO
innocent are made guilty, and the guilty become more
depraved, and both suffer incalculable moral and physical
evil by their indiscriminate (a) confinement.
3. But we are also told, that the introduction of a
new system will be attended with trouble and expense:
trouble to learn its provisions; expense to carry it into
effect. Of this there is not the least doubt. All laws
that ever were or ever will be made are liable to this
objection. But whatever trouble they give in learning
them, or whatever sum  they cost in making, we must
have laws; and if we are wise, we must have good laws.
If those which now govern us are good, lie would be
mad, or worse, who should propose to change them.
The first question, then, is one that has already been
discussed, are our present penal laws good or bad?
Their defects have been shown.  No man who has
considered the subject, can call ours a good system.
But as good and bad are relative terms, the present
laws not being perfectly bad, nor any that can be offered
to replace them perfectly good, our inquiry is reduced to
one of expediency.  We must compare the present state
of things, its advantages and evils, with those of the
system that is proposed, and as the scale preponderates,
decide to remain as we are, or to adopt this or some
other code in its stead. The materials for forming the
first part of this judgment are already before you. The
evils of our present laws have been exhibited; and if the
advantages have not been displayed with equal care, it is
because all that has been thought good in the excellent
materials which are found in its composition, have been
used in the construction of the new system that is offered
to replace it. Another part of the operation, the consideration of the advantages and defects of the new
system, must necessarily be deferred until we enter on
the detail of its provisions.
(a) This is not a repetition, although the enormity of the evil would
excuse its being brought frequently to notice. When formerly mentioned,
it was to show its general demoralizing effects on the whole community.
Here it is enumerated as one of the causes of individual suffering.




THE SYSTEM OF PENAL LAW.             1.61
To dispose of the present objection, we will, first,
consider the evils attendant on every change that may
be proposed, and compare them with those which we
now suffer, or must expect as inevitable, from a continuance in our present state.
First, the prominent objection of the trouble and
inconvenience of learning a new system. To give any
weight whatever to this reason, we must suppose a state
of things which does not exist; we must suppose that
the present laws are known-known to those who are to
obey, as well as to those who administer them; because,
in all evils in government, it is amongst the greatest, that
the laws, particularly the penal laws, should be a mystery
to the people, and the knowledge of them confined to
certain designated classes or descriptions of men. They
invariably make a property of them in the strictest sense
of the word; a property that must be paid for, whenever
it is wanted for use; and, like other articles of commerce,
is not always sold in a pure unsophisticated state; and
the unfortunate purchaser of the adulterated commodity
has no means of determining whether it be good or bad,
until he has incurred some loss, or made himself liable to
some penalty by trusting to it. And, to carry on the
metaphor, the seller himself may have been equally
deceived in them, for a written code is the only public
inspection office at which the stamp of authority is given
to legal opinions, and by a reference to which their
correctness may be tested. But it has been shown — it
is believed to demonstration-that with a very considerable
portion of its penal laws, three-fourths of the people of
this state cannot, in the nature of things, be acquainted;
that the other fourth can know it but partially; and to
any one who has attended our courts, it must be evident,
from the number of contradictory cases and authorities
cited, sometimes on the simplest points (a), that even
(a) For proof of this assertion, if any be wanted, open at random any
report of a criminal trial at common law. In the case already referred
to, of the Territory v. Barran, fourteen cases were arrayed on the one
side, and were met by an equal force of fourteen on the other; each of
L




162                INTRODUCTORY REPORT TO
those who have made it the study of their lives to
expound these laws, and those whose duty it is to apply
them, are not yet masters of their provisions. Each
advocate relies on his own authority, and the judge,
perhaps, decides according to a third.
The present law, then, is wholly unknown in some of
its essential parts to a large majority of the people,
because those parts are either not written at all, or
written in a language that is not understood: and, to say
no more, it is not perfectly known to those who are
them equally law, because each was pronounced by Sir William Blackstone's living oracles; and yet fourteen of them must have been false, if
the other fourteen were true.
In another case, the offence was, in the indictment, stated to have
been committed " in the city of New Orleans," which we all know to be
in the First District; and lest that might be forgotten, the words "First
District" were put in the margin.  A conviction took place on this indictment; but a motion was made to arrest this judgment, because the
words "in the district aforesaid," were not inserted after the words
" New Orleans." Twenty authorities, equally conclusive, were cited on
this important question.  And it was decided, that the words were
necessary; and the defendant, although found guilty, escaped punishment. Will this decision be a rule in future cases? To use a favourite
phrase to express judicial legislation, does it settle the law? The general
assembly may judge from the following statement:
In the case of the Seven Bishops, three judges decided that surety of
the peace might be required in the case of a libel.  One judge dissented.
-In the case of John Wilkes, Lord Camden, in declaring the opinion
of the court, according to the report, says, that the dissenting judge
(Powell) was the only honest man of the four, and subscribes to his
opinion, declaring that " it is absurd to require surety of the peace or
bail in the case of a libellous suit."
In the case of Nugent, the superior court of the territory of Orleans,
decided contrary to the opinion of the court, as declared by Lord
Camden, and required the defendant to give security for his good
behaviour.  What has been decided in the eight several independent
courts'of criminal jurisdiction, since that time, I cannot say. What sides
theyv have taken between Lord Camden and Judge Martin, I cannot
pretend to know. But I ought to add, that one reason alleged for not
subscribing to the opinion of his lordship, was, that it was believed to
be inaccurately reported, thereby adding the high authority of our own
judiciary, to the support of what I have said, as to this source of uncertainty in the English law —an uncertainty not theoretically feared, but
practically felt in forming the decision just quoted.




THE SYSTEM OF PENAL LAW.                163
paid (a) to explain and administer it. Here the proposed
system has a decided advantage; for it retains almost
all that is now known, and renders that accessible which
could not be approached before. It can be read in the
language of the reader. It can be read in one book,
without being obliged to have recourse to a hundred.
Its terms are simple and intelligible, or are made so by
explanation. It is methodized, and the part that is
required, may  be  found  without trouble.   If it is
adopted, the law no longer is a snare for the unwary;
all its penalties are exposed; whoever incurs them must
do it wilfully; the good citizen clothes himself in their
protection, for they teach him all his rights and all his
duties; the knave knows and fears them, for lie sees
that they cannot be evaded nor broken with impunity;
the diligent may easily acquire a knowledge of all their
contents; the more negligent knows where the provisions
that suit his immediate occasions are to be found when
they may be wanted, and no one will have occasion to
pay another for expounding laws, which, being intended
for general use, are suited to the capacities of all. These
will be the effects of a good system. Nearly the reverse
is experienced under the present. And I think it may
safely be asserted, that less time will be required to
obtain a perfect knowledge of any law that is reduced to
writing, and framed with a tolerable attention to clearness
and method, than will be necessary to learn that part of
those which now govern us which is unknown even to
its professors.  But should it be conceded that this supposition is unfounded, and that greater trouble would be
required than is supposed, to master the differences
(a) Any reflection derogatory to the learning, ability, or integrity of
the respectable judges and other magistrates, who administer our criminal
law, would be so unbecoming, not to say unjust and disrespectful, that it
is hoped nothing of this kind will be understood by the report, or imputed to its author. What is meant by this, and similar observations
in this work, is, that the laws themselves are in such a state, composed of
such heterogeneous materials, drawn from such obscure sources, and so
confusedly put togetherl, that it is impossible for the most assiduous
application and the quickest apprehension to master them.




164          INTRODUCTORY REPORT TO
between the old and the new system, for those who
have studied the former, yet this can apply only to
ourselves, to those who are now on the stage of public
life. But those who are just about to take their places
there; the countless succession of legislators, judges,
advocates, magistrates and officers, who are to replace
them! — the multitude even in the present day, who
have not yet studied the present laws, but who are
bound to obey them!-the millions who are to follow
them in the lapse of those ages which every good citizen
must wish his country and its institutions to endure!-is
the curse of bad laws, and the odious and painful task of
learning them, to be entailed on these for ever, to save
ourselves the task of a few days or weeks' mental application? But this inconvenience, whatever be its amount,
cannot be avoided. The new system must be studied.
It cannot be rejected without examining and weighing
its provisions; and if in performing this duty, those who
study it to find out defects and objections, would give
but half the care in amending what is wrong, or pointing
out and advocating what is right, we should hear no
more of their objections to adopting it. This argument
is addressed to enlightened legislators, who know that
their labours are not to be confined to the ephemeral
operation of the present day. To those upright magistrates who are ever ready to sacrifice their personal
convenience to the permanent good of their country; to
the high-minded members of an honourable profession,
who cannot but see the uncertainties and incongruities of
our present laws, and who would scorn to make public
evil contribute to their private good: these classes
comprise generally all who, having any knowledge. of
the system now in force, would find some little part of
that knowledge useless by the introduction of a new one;
and to either of these it would be insulting to express a
doubt of their readiness to devote the time necessary for
this new study; or that they would for a moment put in
competition a trifling and temporary personal inconvenience with a lasting and important benefit to their country.




THE SYSTEM OF PENAL LAW.          165
It must be observed, that I am now answering the
objection of trouble and inconvenience only, as applicable to any change; and that, therefore, it is permitted
to consider the change as an advantageous one; for it
will most readily be conceded, that neither trouble nor
expense ought to be incurred for replacing a bad system
by one that is not better.
The arguments on this head have hitherto been
based on an assumption that we had a choice either to
remain as we are, or to change; but if the facts already
stated are true, and the deductions from them are correct,
there is an absolute necessity for the change.  The
Spanish laws must be abrogated: the incongruities in
your own must be corrected: rules must be provided for
defining, prosecuting and trying the offences not enumerated in the act of 1805: and a penitentiary must be provided and laws must be made for regulating its discipline,
or else some other mode of punishment must be substituted for the one to which the criminal is sentenced, but
which there are no means to enforce. There is a moral
obligation to do this. No part of it can be omitted,
consistently with the first duties which representatives
owe to their constituents. There is a necessity for all
this and more; unless we choose to abandon the high
station on which so lately we were placed by the resolutions of your predecessors; unless, without motive and
contrary to duty, and interest, and reputation, we recede
in the path of improvement which we ourselves have
traced, while others, to whom we led the way, advance;
unless, after having received by anticipation the prize in
the race of reform, we sullenly refuse to proceed, and
suffer other nations to snatch it from our hands; unless we
cease to be intelligent, great, enlightened and free; cease,
in short, to be ourselves, and become what Louisianians
never can be, regardless of national honour, careless
of the reputation they have acquired, insensible to
their own interest and the happiness of their posterity;
a physical as well as a moral impossibility! For nature
must counteract her own work, must take away the high




166           INTRODUCTORY REPORT TO
sentiments of honour and patriotism which she has infused
in the minds of my fellow citizens, before they can submit
to anything that shall derogate from the reputation they
have acquired, or be induced to renounce any undertaking
that promises future glory and happiness to their country.
Therefore whatever be the trouble, whatever the
expense of the measure, it must be incurred. But the
opposers of the system overrate both. The one has
already been considered. It has been shown to be converted into facility, as to those who have not yet acquired
a knowledge of our laws; and as to those who have, it is
believed that little of their former acquirement will prove
useless, as the system will be found to contain all those
good provisions of the old law, which are familiar to them,
with no other alteration than was required for the arrangement of the work; nothing omitted but what they would
not wish to remember: nothing added but that which
was necessary to enforce the great principle on which
this branch of jurisprudence ought to rest; and if the
earnest endeavours of the reporter have not failed, they
will find at least some order, precision and conciseness
introduced, which cannot fail to facilitate study, aid the
memory and lessen the difficulty of reference in the same
degree that the confusion, ambiguity and prolixity which
now characterize our laws render these operations difficult.
The expense, as I shall now proceed to show, although
nominally of large amount, is yet balanced by so many
advantages, even in a pecuniary view, as to merit little
consideration, and none at all when it is compared with
the least of the evils attending our present state, or of
those greater evils to which they inevitably lead.
The principal expense attending the reform, will be the
establishment of the different prisons, recommended in the
fourth code. A schedule to this report, containing the
probable cost of erecting those buildings, with the salaries
of the officers and attendants; the expense of food and
clothing for the prisoners, and all the other articles of
outlay calculated on the most extensive scale that can be
required, will show, when compared with the present




TH'E SYSTEM OF PENAL LAW.             ~ 67
expenses, much better than any argument, what additional
burden must be borne by the funds of the state; the
moderate amount of which will astonish those who have
not calculated the difference between maintaining a
prisoner in idleness, or obliging him to labour for his
subsistence; for it will be found that the saving made by
the latter mode of treatment, calculated on two hundred
prisoners, will very nearly pay the interest of the first
expenditure required for all the proposed establishments.
It is true the sum required must be advanced by the
state: but if their present funds are relieved to the
amount of the interest of that sum, the only present inconvenience is the opening a loan for the principal sum,
to be repaid at a future day. Before which time the next
and most important pecuniary saving to the state, in the
diminution and prevention of crime, will more than enable
the next generation to pay it; for it can be shown as
nearly to demonstration as the subject is capable of, that
every juvenile vagrant or offender that you educate and
reform, is on an average a saving to the state treasury of
more than two thousand dollars (a), which would be expended under your present system in the expenses of repeated convictions and maintenance during his successive
confinements; while there is no calculating the unequal
tax that he levies upon particular citizens by his depredations. This subject will be resumed and more fully
developed in the introductory report to the Code of
Prison Discipline.
4. I now proceed to the objection to a written code
-that although good in theory it is bad in practice.
So far as this objection is intended to apply to any
part of the system now offered for your consideration, the
answer must be deferred until the details of that system
(a) A committee of the legislature of New York, state the case of a
prisoner in one of the penitentiaries, who was first convicted when he
was ten years of age, and had been, for repeated offences, twenty eight
years in confinement. This man alone, at the rate we keep our convicts,
would have cost the state more than five thousand dollars, besides the
expense of removal and conviction.




168,            INTRODUCTORY REPORT TO
come to be examined; here it must be discussed as an
objection to any written code whatever of penal law.
This is a common expression, used most frequently without
attaching to it any precise meaning. It conveys a vague
idea of something wrong, and is employed chiefly to avoid
the difficulty of answering cogent reasons that are offered
for the adoption of any untried measure. As relates to
tile present subject, it is a peculiarly unfortunate argument in this state; for, as was formerly observed, it is
not untried. It is not theory alone. It is practice in
the more difficult branch of civil jurisprudence; and the
facility and success with which that operation was performed, if we may trust to the strongest analogy, must
ensure the like results to this. Having heard under this
head nothing but the naked unsupported assertion, a
sufficient answer to it would be, that it carries with it its
own refutation; for, if in the terms of the objection, the
plan be good in theory, it cannot be bad in practice. A
system of laws to be good in theory, must be well adapted
to the end proposed (a); must be suited to the people
they are intended to govern; must be certain, convenient
and constitutional; in short, must be good when reduced
to practice. If the theory fail in any one of those things
which are necessary to put it in execution, it must be
supported by bad reasoning. There must be some fallacy,
which, being exposed, would show it to be bad. Such a
theory ought to be assailed, not by asserting it to be good
in itself, but incapable of being executed; which is a contradiction in terms; but by showing why it cannot be
reduced to practice, that is, by showing it to be a bad
theory.
5. Tile only remaining objection to reducing the laws
to writing is this, that every new system necessarily supposes the use of new terms, and those must have their
meaning settled by judicial decisions before their import
(a) Lex, bona censeri possit, qume sit intimatione certa, precepto justa,
executione commoda, cum forma politise congrua, et generans virtutem
subditis. Bacon was not a vain theorist.




THE SYSTEM OF PENAL LAW.           169
can be understood; that these will create the very uncertainty which the code is intended to remedy. And in
support of this opinion it is said, that the Code of
Justinian, although written, has produced as many contradictory decisions and as voluminous commentaries as
the common, which is unwritten law; and that the Code
Napoleon, though but of yesterday, groans under the
weight of works intended to elucidate it.  If the terns of
the new law are comprehensive, it is said, they will
include more, if precise, less than the legislator intended;
the judge must determine, from a wise examination of the
words and a prudent attention to the spirit, what was the
real intent of the law. This has already been done in
the common law. Its terms are explained. The cases
which come within, and those which are excluded, are
known. To unsettle them would create confusion; and
therefore, we had better suffer the inconveniences we
have, than fly to others that we know not of.
There is some truth, but more plausibility, in this
argument.  It does not, like others, found itself on
popular prejudice exclusively, but has weight, great
weight, with many prudent men, who do not detect the
fallacy of the argument, or perceive how little the facts
on which it is founded, apply to our circumstances. I
have some hope of enabling them to do both; and if the
enemies to written law, the partisans of the jurisprudence
of decrees, are driven from this position, I shaft be justified in believing the field clear for a consideration of the
merits of the plan that is now offered.
Before we examine the reasoning we have stated, a
preliminary observation or two is necessary, on the difference between the penal and civil law, to which last all
their facts and all their reasonings apply. Civil law,
from its nature, must govern all cases that may arise in
the infinite series of conflicting claims and disputed rights
between individuals; claims, which arise from the ambiguity or silence of the laws; rights, which are created
by the continual changes that occur in the state of society,
in commerce, in the arts. Criminal laws on the contrary,




1 70          INTRODUCTORY REPORT TO
are infinitely more contracted in their operation; emanating from the sovereign will, they admit of no alteration
but that which it declares. Neither society, nor conmmerce, nor the arts, in all their progressive or retrograde
movements, be they ever so rapid or important —not even
political events, be they ever so destructive of civil
associations, can have the slightest effect on the penal
law. They may call for changes, but can produce none.
That law lives in itself, and can neither be changed or
modified, so as to be accommodated to any of those circumstances, but by positive legislation. What the law
forbids, is an offence; but the law cannot forbid without
being perfectly intelligible, "incertam si vocem det tuba,
qui se parabit ad pugnam?-incertam si vocem det lex,
qui se parabit ad parendum?" The trumpet may sound
for ever, but no one prepares for battle unless the appointed signal be given. The laws may speak, but can
never be obeyed unless they are understood.
An ambiguous penal law, is no law; and judicial
decisions cannot explain it without usurping authority
which does not belong to them. To extend the law to a
case that does not come within the plain meaning of its
words, is to make a new law. Nothing, it appears, can
be clearer than the reasoning which shows this. Suppose
a law should pass, declaring that if Peter left the state,
his property should be forfeited. To declare, by a
judicial decision, which of the many men bearing that
name was meant, would certainly be a new law; because
the individual really intended could have no notice that
the law applied to him; there was no intelligible prohibition; the law gave an uncertain sound and he could
not prepare himself to obey.
Not quite so in civil law. Its office is to prevent individual rights from being infringed, or to grant compensation for any encroachment upon them; and in doing this,
there is an absolute necessity of deciding on cases not
previously provided for by positive law; in other words,
there must be a power of construction, for this plain
reason, that whichsoever way the judge decides, his




THE SYSTEM OF PENAL LAW.            171
sentence affects private right.  If it were a right claimed
under colour of a positive law, and supposed to be created
only by it, and that law were ambiguous, the same
reasoning would apply in civil that we have used in
criminal cases. The obligation to respect that right, in
such case, having no other origin but the positive law,
if that were uncertain, the defendant against whom it
was claimed, not having any intelligible notice of the
duty required of him, could not be constrained either to
perform it or to make compensation for omitting it; and
the decree must be against the plaintiff, in the same
manner as it would be against the state, on a prosecution
under an ambiguous penal statute. But in the decision
of ordinary questions this is far from being the case;
there, as has been said, the judge must decide, and his
decision must establish a right. Take the common occurrence of a suit on a contract of sale, where the defence
is concealment or fraud: here the judge, in deciding for
the defendant, takes away the apparent right of the
plaintiff to recover on his contract. In giving judgment
for the plaintiff he determines, the facts being conceded,
that the concealment is not of sufficient importance to
vacate the sale. If the case be a new one, he must
decide without positive law; he must frame his judgment
by analogical reasoning from the law in similar cases; and
if it be correctly drawn it will be respected for its wisdom,
and abridge, by its adoption, the labour of further investigation in subsequent discussions of analogous cases.
Thus the jurisprudence of decrees, or the authority of
precedent, is by degrees established in civil cases; first,
from the necessity of deciding between conflicting claims,
and afterwards from the very great advantage of having
settled and fixed principles, stare decisis being a maxim
that usurps the place of regular legislation; but its misfortune, like that of all other illegitimate power, is this,
that its authority is uncertain and vacillating; it is law,
or not law, according to the discretion or passions of subsequent judges, of which hundreds of examples might be
given, more striking than the one hereinbefore referred to.




172           INTRODUCTORY REPORT TO
The effectual and obvious remedy, of a periodical
legislative review of these decisions, for the purpose
of incorporating any new and convenient principles they
may establish, under their proper heads, in the frame of
a code previously made, and thus giving them the stamp of
legal authority, has not, it seems, ever yet occurred to any
legislator; yet it is an effectual mode of clothing judicial
wisdom and experience with legislative authority, and
making that law, which, under our constitution, cannot
but be considered as an encroachment. From this glance
at the nature, rise, and progress of the law of precedent,
and the hint at one of its many evils, with the remedy
suggested for it, it will appear, first, that although there
is an apparent necessity for giving some authority to
decisions in civil cases, there is none in criminal;
secondly, that this necessity is only apparent even in
civil cases, and arises from the negligence of the legislative branch to assert its rights and perform its constitutional duties; thirdly, that any construction which a
court can put on the terms of a penal law, must either
give them an operation different from that contained in
the plain obvious meaning of those terms, or it must be
in conformity with such plain meaning, and then it follows
conclusively, that, in the first instance, it would be
improper to give the authority of law to such construction, and in the last it would be unnecessary; fourthly,
that if a penal law have no such plain obvious meaning
in its terms, it is deficient in an essential requisite to its
very existence, and can have no sanction.
These deductions all relate to decisions on the text of
those laws which impose a penalty for their contravention. But there are other questions in criminal law,
relative to evidence and procedure, in which all the care
that may be employed to provide for their solution will
be found insufficient. To these all that has been said on
the subject of precedent in civil cases applies; and it
will be found that means are pointed out to give to every
judicial decision, on these points, the force of law, whenever, after a legislative discussion, they shall be found to




THE SYSTEM OF PENAL LAW.          173
be correct. Add to this, that especial care has been
taken, in framing the new code, to preserve the terms
now in use, where the same sense could, consistently
with the order of the work, be applied to them; and
that whenever new terms are found to be necessary, or
old ones have a new or more precise signification annexed
to them, they are fully explained in the Book of Definitions; and then, from a consideration of the whole subject, it will be found that the objection is more plausible
than well founded; and that if any decisions are necessary
to explain the terms of the new system, they will be
much less numerous, and will have greater authority,
and can be learned at less expense, either of time or
money, than those which are still necessary to elucidate
the dark parts of our present laws.  The argument
drawn from the number of commentators and contradictory decisions on the two written codes, those of
Justinian and Napoleon, is plausible, and of course
very commonly used; but it has little weight even
against a civil, much less against a penal code; and,
among many other reasons that might be urged in a
dissertation on the subject, for this conclusive one, that
both those codes contain the radical fault of admitting a
recourse to an authority beyond that of the codes themselves. The authority of the emperor in the Latin and
usage in the French system.  The best code that can
be provided is but a frame-work on which a better is
to be constructed. It must provide for its own progress
towards perfection; but it provides for its own corruption and final destruction if it admits judicial decisions,
unsanctioned by law, to eke out its deficient parts, to
explain what is doubtful, or to retrench what may be
thought bad. The remedy is easy, efficacious, if it
succeed; innocent, if, contrary to all reason, it should
fail. It will be found at large in the project of a law
for adopting these codes; and it is confidently believed,
its operation will show that there is no more force in
this last objection than in those which preceded it.
Enough, I hope, has been said to clear the ground of




174           INTRODUCTORY REPORT TO
the general and indefinite objections that have been
raised to the reformation which was so wisely directed
by a former legislature: enough, and more than enough,
to justify them and their enlightened successors. I have
spoken on these subjects with a confidence that might
justly be taxed as presumption if they were my own
opinions only that I expressed; but I am strong in their
wisdom, and bold in the assertion of principles which
they have sanctioned.
I am now about to approach different ground, and to
enter upon the discussion of the different provisions
of the system, with very different feelings. So far as
concerns the general principles on which they were
directed to be formed, I feel the same confidence, for I
am supported by the same authority. But in examining
how well these principles have been reduced to the form
of practical precept, I cannot but feel a diffidence which
the uncertainty of receiving the same approbation
naturally creates; though even this is lessened by a
consciousness of having exerted every faculty in the
endeavour to make the work worthy of those who
directed it, and a blessing to those for whose use it
was designed. Before I enter upon this discussion, however, and come to the consideration of the provisions of
each particular code, it seems proper that I should conclude these general introductory remarks with some
observations on the characteristics of the whole system,
which, although they may have been incidentally adverted
to elsewhere, yet merit more particular attention, on
account of their novelty, and, as it is also thought, of
their importance.
The legislature of Louisiana has given the first example
of proclaiming to their constituents and to the world the
principles by which they would be guided in the great
work of penal legislation. A very short law contained
these principles, concisely but clearly declared to be the
basis of the code which they directed to be prepared.
These were developed in a subsequent report; and both,
translated into different languages and published in dif



THE SYSTEM OF PENAL LAW.          175
ferent countries, have excited an interest abroad which
certainly would not have been created by any ordinary
change in the jurisprudence of a small and distant state.
Nor was there any thing in the report that could account
for the attention it has received. The style is not marked
by any peculiar excellence, and most of tile arguments it
contains had been before used and urged with better
method and greater force. What, then, is it that has
attracted the attention of the statesmen of Europe to the
legislation of one of the least states in our union; and of
its jurists and men of letters to a pamphlet, which has no
other merit than that of containing true principles, simply
stated, and elucidated without the aid of eloquence? It
is the novelty of hearing governors, for the first time,
addressing the people in the language of reason, and
inviting them to obey the laws, by showing that they are
framed on the great principle of utility! It is the imposing spectacle exhibited by a nation, already freed from
the shackles of political servitude, bursting those which
the prejudice of ages had riveted on the mind! It is the
surprise occasioned by the simplicity, and ease, and safety
of an operation, which ignorance and interest had represented as perplexed, dangerous, and difficult! Other
rulers have sometimes deigned to explain the motive for
making a particular law.  Ours alone have offered a
general system to the consideration of the people; and
told them, not only that it was expedient, but explained
why they thought it so; invited them to reflect as well as
to obey; made their precepts lessons of pure morality as
well as of law; and showed that, consistent with the
public good, they never can be separated. They say to
them, for the first time in the history of jurisprudential
legislation: —"We are about to frame rules for your
government, in your various relations to each other and
to your country. Those, by which you and all other
nations have been bound, have hitherto been couched in
language only understood by a few, who naturally made
a property of their knowledge. All mystery is now at
an end. Here are the laws, and here are the principles




176           INTRODUCTORY REPORT TO
by which we were guided in framing them! Judge
whether the principles are correct! Determine whether
we have conformed to them! It has been said by those
of old, sic volo, sic jubeo, stet pro ratione voluntas-obey
the law because it is written; but we say unto you, obey
the law because it is just, because it is for your benefit,
because the principles on which it is founded are wise!
The law has its source, not in our will, but in reason,
truth, justice and utility: of all which our will is only the
organ and the record. When you find that we promulgate precepts not consistent with their dictates, although
they must be obeyed while they are in force, yet the evil
is remediable, for with the law we give you the rule in
conformity with which it was intended to be made. If,
then, the rule be bad, or the law be not conformable to
it, the remedy is in your hands: dismiss us, and repeal
our law." It is the unprecedented nature of this frank,
simple language, that distinguishes your projected code,
and that makes it an object of curiosity and interest; a
theme for argument; and, possibly, a model for imitation
in its leading characteristics.
Another peculiarity in the plan now presented is, that
it is a system of which all the parts are connected with,
and bear upon, each other. All the written criminal
codes hitherto established have been defective in this
particular. With those of Draco, Solon and Lycurgus,
we are not sufficiently acquainted to say more, than that
the fragments of them that have descended to us, do not
justify a belief that they contained anything more than a
few arbitrary enactments, assigning particular punishments to designated offences, without any provisions for
preventing the latter in any other way than by the
terror of the former, without any rules of procedure, and
mingling together, without order, the civil and criminal
branches of jurisprudence. The same characters may be
given of the laws of the Twelve Tables; and even that
wonderful collection of human wisdom and foresight, to
which modern nations still have recourse for the best
principles of distributive justice-the body of the }Roman




THE S~YSTEMI OF PENAL LAW.        177
Law-was wofully deficient in the arrangement which
ought to draw the line between civil and criminal law.
The laws of the Partidas in some measure correct this
evil; but although the criminal code is there thrown into
a separate division, yet penalties are profusely scattered
among civil remedies; and these latter are often found
usurping the place of punishments.
Of modern codes, the Russian, Prussian, Tuscan and
Imperial are more or less liable to the same reproach;
but the penal code of Napoleon in a great degree avoids
it. This defines offences, and a code of procedure directs
how offenders shall be tried and punished; but here it
stops. Yours, on the contrary, in addition to the enunciation of principles on which I have already remarked,
contains the further essentials to a complete plan, a code
of evidence and a book of definitions. The book de verborum significatione in the code of Justinian is somewhat
analogous to this last feature in yours, but it differs in
this: that the whole body of the Roman law being only
a digest or compilation of those before in force, the words
in which it is expressed were those originally employed,
and, being the work of different hands, these words were
retained, and the book in question was added as a kind
of lexicon to explain them. Your code being an original
work, the reporter was not restricted in his selection of
terms, and when those he used were susceptible of more
than one signification, or were in their general use uncertain or ambiguous, he was at liberty to annex to them a
precise signification, taking care that, in the course of the
work, they should be used in no other. The great utility
of this part of the system is obvious, provided it has been
executed with the necessary precision. It is that part
which has been found the most difficult.  The most
intense application was necessary to define terms the
most commonly used, but to which many of those who
employed them affixed ideas more or less materially different. This difficulty is increased by the nature of the
language, which very frequently does not afford terms
sufficiently precise to-, avoid difficulty, even in the periMI




178           INTRODUCTORY REPORT TO
phrase -used in the definitions, so that in many instances
I have been under the necessity of defining the words
employed to explain others. And, in order to approach
nearer to that certainty so necessary in all laws, recourse
has been had to corollaries, examples, and illustrations,
as well in the body of the law as in the book of definitions. This is also a new feature in legislation; and,
like many others that had not yet received the sanction
of experience, it was made the subject of solicitous
reflection before it was adopted.  An author, whose
maxims in law and legislation are entitled to the highest
respect (a), and whose rules I have more than once taken
as my guide, has said that the lawgiver ought not to
reason, but command: the false construction usually put
upon this precept need not now be examined; here it
will only be necessary to say that the illustrations alluded
to are not reasonings, and therefore do not contradict the
maxim; they do not purport to give the reason of the
rule, but to show clearly what it is. Sometimes. this is
done by enlarging, sometimes by restricting, and somnetimes by the elucidation of example; but all are only so
many amplifications of the rule in the text; all are precepts. The lawgiver takes upon himself that part of his
duty which has heretofore been improperly devolved
upon the judge: the law as it now stands gives the simple
precept, the judge makes the deductions; he declares
how far the law is intended to extend, what classes of
cases do not come within its purview. If language furnished words sufficiently numerous to express every idea,
and sufficiently definite to admit of no other construction
than the one intended, the legislative function would end
with a simple exposition of its will in tile requisite terms;
but unfortunately this is not the case. Languages were
formed in the infancy of society, and of course would contain terms commensurate only with the few wants and
simple ideas, prevalent in that state of society. As the
necessity for other words increased with advancement in
(a) Bacon.




THE SYSTEM OF PENAL LAW.           179
civilization, the supply was furnished either by periphrase,
by figurative language, by adoption of words or phrases
from other tongues, and, in very few instances, by the
creation of new terms-all of these, except the last, the
fruitful sources of amphibology and doubt. This is not
the place to enter into a discussion of the philosophy of
language, but it was necessary to advert to the source of
this difficulty, in order to show that from this defect in
every language, the lawgiver could, in none, find terms
sufficiently precise for the expression of his will, in all
the cases which might occur. And therefore, although
the avowed object of every legislator was certainty, yet
in the body of all laws, sometimes from the negligent or
unskilful use of the language, sometimes from its internal
defects, the legislative intent is so uncertain, that the
chief employment of the judiciary power has been, not its
proper function of ascertaining facts and then applying to
them the provisions of a known law, but in the legislative
task of declaring what the law is. Good laws, expressed
in precise language, would destroy this confusion of
powers. Such laws admit of but one interpretation, or,
more correctly speaking, they admit of none.  The
judiciary power has nothing to do but to ascertain facts,
and direct the execution of the law in the particular cases
which warrant it. But when the fact is ascertained, and
the question is, whether it comes within the purview of
a law which does not apply to it in terms, or whether,
although it is embraced by the letter of the law, it shall
be excluded from its operation-the decision is surely a
legislative act, because it must either extend the words
so as to embrace the case, or restrict them so as to exclude
it. But the extending a statute or restricting it is as
clearly a legislative act as the passing of the statute was;
a particular legislative act as respects the case under consideration; a general one, by the doctrine of precedent,
as respects all others. Yet this duty has devolved upon
the judiciary, even in countries where the division of the
several departments is a fundamental principle; so much
so, that the abuse has become the rule; and it is as




18O              INTRODUCTORY REPORT TO
commonly said that the office of the judge is to interpreti
the laws, as that it is his duty to apply them.
To avoid misapprehension, let it be clearly understood,
that in no part of this system is the judge inhibited from
resorting to  all the  means  which  grammatical  construction, the context of the law, the signification usually
given to the words employed, or their technical meaning
in reference to the subject matter, will afford for discovering the true sense of the act. This operation must
of necessity be performed. It is directed by the text of
the code, and indeed is so unconsciously performed in the
common intercourse of life (a) that it cannot be called an
interpretation. That which is reasoned against here, and
forbidden by the code, is not the application of the rules
of grammar and  common sense to  discover from  the
language of the law what it intends; but the encroachment on  the legislative functions begins, when judges
talk of distinctions between the letter and the spirit of
the law, and forget the limits of their authority, so far as
to supply omissions and retrench superfluities in statutes.
I know that the inaccurate language of many statutes,
has, in several cases, reduced the judge to a kind of necessity of exceeding his constitutional powers, because the
legislator has neglected his, and thus furnished a plausible
excuse for this encroachment, and I acknowledge, that
for the most part, it has been beneficially, or at least, not
oppressively exercised.   But it is not the less an encroachment.  In England it is part of the common law
that judges should exercise this power. But that part of
the common law which regulates the distribution of
fundamental powers, is the constitution; therefore the
(a) Instances of this are scarcely necessary. "John fell upon Peter
and bruised him severely."  If the context shows that they were travelling together in a carriage which was overturned, we shall have one
sense of this phrase; if it informs us that they were quarrelling, we
shall have another. The instantaneous operation of the mind in connecting the phrase used with the preceding matter can scarcely be called
an interpretatiol, though tno words themselves may convey very different
idetas.




THE SYSTEM OF PENAL LAW.           181
exercise of this power, is there a constitutional right. In
the state of Louisiana, on the contrary, it is no part of
our constitution —it is expressly forbidden by that instrument.  If the act of declaring to be law, and enforcing as
such, something which the legislature has not prescribed,
or declaring that what they have prescribed shall not
have the force of law, under whatever pretexts such acts
be done, be the exercise of legislative powers; then is the
act of enlarging or restraining the words of a statute, by
a constructive reference to its spirit, expressly forbidden
by our constitution, which directs, both in affirmative and
negative terms, not only that the three great departments
shall be kept separate, but that no person invested with
one of these powers shall exercise the functions of either
of the others. What, then, is our remedy for the evil of
ambiguous laws? The judges cannot, as in England,
supply it. The legislature must eradicate the mischief,
instead of suffering it to be tampered with by the quackery
of judicial legislation.  Laws must be brought back to
their original simplicity.  They must be expressed in
purer terms when the language affords them, and when
no others can be found but such as admit of a double
sense, they must be explained by a periphrasis, elucidated
by examples. The exceptions intended must be stated,
the true deductions made, and such false conclusions as
are apprehended, expressly negatived. This is what has
been attempted to be done by the feature in the code now
under consideration.  If the attempt has been only
partially successful, it cannot, it is believed, be doubted
that the law will be better understood by this course;
because it is precisely in. this way that the advocates for
the jurisprudence of decrees contend that th3. law is better
elucidated by the court-every precedent is but an example-every decision it contains is a deduction from the
text of the law, declaring affirmatively what is, or negatively what is not, its intent; and those who say that
this task can be well performed, long after the law has
been made, by judges who had no agency in making it,
cannot deny that it may be better done at the time of




182           INTROI) UCTORY REPORT TO
giving the law, by the legislator from whom it emanates,
who may reasonably be supposed best to know his own
intentions. If after having expressed his will in general
terms, he should find, on reflection, that the words he has
employed will admit of several constructions, one of which
only he intends to enforce; if he should find that after
settling the direct application of the law, deductions may
be made from it, which he did not intend to allow; if,
from certain false reasonings which have prevailed, or
which circumstances induce him to fear may prevail, he
is inclined to apprehend that his law will not be applied
to the cases he intended; or, lastly, although he intends
that his law shall apply generally, if he should find there
are certain cases which he desires to except from its
operation, what, under such circumstances, is it the part
of a wise legislator to do? To devolve upon the judiciary
the task of expressing his real intent, of making his
deductions, stating his exceptions, and giving to his law
all the extension and restriction which it was his object
to effect? Or to perform, as far as may be practicable,
his own duty? The only reasonable answer that can be
given to this inquiry would justify the course that has
been taken. It is scarcely necessary to reply to the objection, that after all the elucidation that can be made,
the law may be obscure; after all the care that can be
taken, it may be imperfect; after all the cases that can
be foreseen, others will be found to have been omitted.
No duty of society, moral or religious, would be performed, if we were deterred by such arguments. Yet,
strange as it may appear, this fallacy has its effect, and
we submit, particularly in jurisprudence, to oppressive
absurdities, because no remedy can be proposed for
removing them, that does not bear the mark of all human
institutions, that of having some defect or inconvenience
attached to it. But, although new in the simplicity of
its form, this feature of the code is not entirely so in substance. It takes the place, advantageously it is hoped,
of the loose preambles formerly used, and in some
instances retained in our legislation; of the provisions




THE SYSTEM OF PENAL LAW.            183
exempting particular subjects from general enactments;
and in a great measure supersedes the class of statutes,
whose titles an act to explain, an act entitled, an act to
amenid, an act in addition to, an act to repeal, an act, &c.,
were a puzzle, and the references of which, from one
statute to another, were as difficult to trace as the most
involved table of descents.
The Introductory Reports to the several Codes of
crimes and punishments, of procedure, of evidence, and
of reform and prison discipline, which compose this system, will be found to contain a notice of the changes in
our present law, on those subjects respectively which are
proposed, and the reasons at large for introducing them.
They will be longer and more argumentative, as this has
been, than would have been necessary, if, still a member
of your honourable body, I could meet objections as they
are raised, and -make the corrections which your superior
wisdom would suggest. Having offered nothing without
reflection, I have reasons for all I have proposed. Many
of them, probably, will be found insufficient to support
my conclusions, but those conclusions are honestly if not
wisely drawn, and the system which they support is submlitted in the full confidence that it will receive a fair, a
full, and a deliberate consideration. Fair, without prejudice against the reporter for the opinions he may
entertain on other subjects, or against his doctrines for
their novelty; full, after a consideration of the whole
system, and the bearing of its different parts on each
other; deliberate, without rejecting any one provision,
until the reasons for proposing it have been maturely
weighed, and its probable effects calculated. A decision
thus made must be wise, and will doubtless prove satisfactory to your constituents, and honourable to your
country and yourselves.








INTRODUCTORY REPORT
TO THE
CODE OF CRIMES AND PUNISHMENTS.








INTRODUCTORY REPORT
TO TtIE
CODE OF CRIMES AND PUNISHMENTS.
AFTER noticing and accounting for some variations in the
arrangement of the work from the original plan, and
giving a slight reference to some of its leading principles, it is proposed in this report to review the CODE
OF CRIMES AND PUNISHMENTS, examine the principal changes
it purports to make, and offer the reasons on which they
are founded.
By the Report on the Plan of a Penal Code (a) made
in 1822, it was proposed to comprise the whole system of
penal law in one code, giving a separate book to each of
the four divisions-crimes and punishments, procedure,
evidence, and reform and prison discipline, and to appropriate another to the definition of the technical terms
used in the body of the work. It, was, however, soon
discovered that, by this arrangement, the subdivisions
of titles, chapters, sections, and articles, would not be
sufficiently numerous for preserving order in the distribution of each of the several great divisions; by
throwing them into distinct codes, an additional great
division was gained, and an easier mode of reference
procured. Each of those great divisions, therefore, in
the system now presented, forms a separate code, and the
book of definitions is a kind of appendix to all, and
preserves the form originally given to it.
(a) Report on the Plan of a Penal Code, p. 9.




188          INTRODUCTORY REPORT TO
This is merely a change of form.  But there is also a
material addition in point of substance: two institutions
are provided for in the Code of Prison Discipline, under
the titles of the School for Reform  and the House of
Detention, which were only incidentally referred to in
the original report; the necessity for which is fully
explained in the introductory report to that code. With
this variation and these additions, the plan contained in
the report, which received the sanction of the legislature,
has been strictly pursued.
Most of the reflections which would find their place
in a general review of the system, have been either anticipated in the report, or will so readily occur to the
members of the general assembly, that it would be
abusing their indulgence even to advert to them here.
There are some, however, of such importance that they
cannot be totally omitted; but in discussing them, all
arguments formerly used will either be carefully avoided,
or referred to no further than is deemed necessary for
the understanding of any new course of reasoning, or
the application of any new facts that nay be introduced.
At our entrance on the subject we are met by the
difficulty of discovering the true theory of penal law.
Philosophy must point it out, for it depends on a deep
investigation of the faculties of the human mind, and of
their usual employment; and wise legislation must adapt
it to the use of mankind.  At no preceding period has
the science of jurisprudence, and more particularly penal
jurisprudence, attracted such close attention as at present. At no period has the progression I have referred
to, from theoretical truth to practical utility, been more
apparent, or promised more important and beneficial
results.  Learned and good men are directing their time
and talents to the subject; and in the intellectual conflict which this interesting discussion has produced, it is
highly gratifying to observe, that the principles which
you have sanctioned have been confirmed by the best
opinions, and supported by the most conclusive arguments.  Even those who disagree on other points, unite




THE CODE OF CRIMES AND PUNISHMIENTS.     189
in approving the general doctrines on which you have
directed your code to be prepared; although, as might
be expected, they differ in the conclusions that may be
drawn from them, and refer their authority to different
sources.  Thus, while all agree that the true end of
penal jurisprudence is to prevent crimes, and that the
doctrine of vindictive law is in the highest degree absurd
and unjust, some insist that crimes are to be repressed
only by the example of punishments; others, that reformation is the only lawful object. Some refer the right
to punish to an implied contract between society and its
members; others, to the principle of utility alone; and
there are those again who admit of no other standard
than abstract justice. Each of these has its partisans
in the conflict.  Without entering into the abstract
reasoning to which they lead, we may content ourselves
with this important result: that whether the right to
punish be founded on contract, or utility, or justice;
whether the object be to punish or reform; whatever be
the true doctrine on either of these subjects, we have the
satisfaction to know that, by a singular felicity, if either
theory be right, the practical results we have drawn front
our reasoning cannot be wrong, for all the provisions of
our system  coincide with abstract justice, with general
utility, and with the terms of any supposable original
contract; and whether reformation or punishment be the
true means of preventing crimes, our plan of prison
discipline will effect the end, for it embraces both.
If upon a critical examination of the system proposed
to you, it should be found to have this extraordinary
adaptation to principles that have been considered as
discordant, it will certainly go far to prove that the
theoretic disputes have turned more upon terms than on
any real difference between them.  For instance, if the
supposed social contract ever existed, the foundation of
it must have been the preservation of the natural rights
of its members.  And this makes it, in all its effects,
the same as the theory which adopts abstract justice as
the basis of the right to punish; which, properly defined,




190           INTRODUCTORY REPORT TO
is only that which secures to every one his right; and
if utility, the remaining source to which this power is
referred, be found to be so closely united with justice, as
in penal jurisprudence to be inseparable, it will follow
that any system founded on one of these principles, must
be supported by the other.
In the same manner, as to the means for attaining the
object common to all, the prevention of crime, if the
most efficacious punishment is that which also best produces reform, then the several theories are reconciled in
practice, however they may differ in the arguments they use.
It has therefore been thought more proper to abstain
from entering the lists of controversy with either of the
disputants, and to adopt, implicitly, the tenets of neither
school; but to be content with uniting, if we can, the
suffrage of all in the practical results we shall establish.
There is, however, one of these results, which, although
deducible from the first principles established by all, is
not yet generally admitted in practice; that feature which
so honourably distinguishes from the existing laws of any
other nation the plan your predecessors unanimously
approved, and which has been one exciting cause of the
attention which the European world is now giving to the
subject; you may easily imagine that I mean the abolition
of the punishment of death. Seldom has any doctrine
made such rapid strides as this has in public opinion.
Although opposed by inveterate prejudices, long habits,
mistaken religious opinions, and the general indefinite fear
of innovation; yet its proselytes are becoming every day
more numerous; the example of our state is everywhere
quoted; the future measures of its legislation are expected
with the greatest interest; and the final abolition of a
punishment, repugnant to our natures, is expected from
you with confidence, not unmixed with anxiety, by
the whole civilized world. An enlightened citizen of
Geneva (a) has published proposals for a prize essay on
(a) Mr. Sellon, member of the sovereign representative council of
Geneva, as early as 1816, proposed to the Council to abolish the punishment of death; and in 1826 he offered the prize referred to in the text.




THE CODE OF CRIMES AND PUNISHMENTS.                191
the subject, in which the  arguments for the  abolition
which have been approved by this state are copied as a
text. A society in Paris has followed the example.
The several periodical papers of France, England,
Germany, and Holland are filled with disquisitions for
the most part highly approving of the plan of abolition;
but none, as far as I have perceived, even of those who
doubt its success, discouraging the experiment as a
dangerous one.
If this principle is retained in our code, it dates back
to the vote of approval, and secures to us a name among
nations  to  which  our relative  population  or strength
would not, for ages, have entitled us; a distinction more
honourable than any that wealth or power or advancement in any other science could give —and  I need not
observe to the enlightened body I address, how much of
that distinction possessed by a country is reflected back
In his proposals, after citing the opinions of Beccaria and Bentham, he
adds-" I finish these observations by producing a document the most
recent and the most conclusive in favour of my proposition.  It is the
accession of the general assembly of Louisiana to the principles laid down
by Mr. Livingston in his report.  My fellow citizens will there see a
republic adopting dispositions, of which the principal one is, the absolute
suppression of the punishment of death."  He then gives a copy of our
law of 1820, the certificate of my appointment, all that part of the
report relating to the punishment of death, and the resolution approving
of the report. In a note on the law, he says,-" Having no other object
in this writing than to convince my fellow citizens that the abolition of
the punishment of death would be a measure both useful and honourable
for my countryv, I have thought that this end could not be better attained
than by making them  acquainted with the report of Mr. Livingston,
made to the general assembly of Loaisiana. Louisiana is a republic.
It is a component part of an illustrious union, as we form part of the
Swiss confederation; and the constitution of the United States, as well
as our federal act, permits the members to provide for themselves the
best laws, even when they differ from  those of the other states.  We
owe to Mr. Taillandier the translation of this report," &c. And he
concludes his programme by citing the examples of modern nations, in
which this abolition has been carried into effect.  1. Russia, under
Elizabeth  2. Tuscany, under Leopold.  3. "Louisiana, in America,
which, on the report of Mr. Livingston, by a solemn resolution of the
sovereign assembly, has decreed the absolute suppression of this punishment. This report, in which it will be seen that the author has collected




192               INTRODUCTORY  REPORT TO
upon its citizens; and in what degree, while they promote
the honour of the nation, they augment the happiness of
the individuals who compose it. It is the firm persuasion
that both will be increased, in an incalculable degree, by
the measure in question, that induces me to press it again
on the consideration of the legislature, and to add a very
few reflections to the arguments which were on a former
occasion considered as conclusive. I then (a) expressed
an opinion that the right to punish by death, might be
established in cases where the importance of the object
to be obtained, and the necessity of inflicting it in order
to attain that object, could both be sufficiently shown;
but my argument denied the existence of such necessity.
On reviewing that part of the report, I think it requires
some elucidation:
Existence was the first gift of Omnipotence to  man.
Existence, accompanied not only by the instinct necessary
to preserve it, and to perpetuate the species, but with a
social (not merely a gregarious) disposition, which led so
early to the formation of societies, that unless we carry
our imagination back to the first created being, it is
all the experience of the past and present times,* appears to me to be a
document of the greatest interest for Geneva, whose position, population,
and constitution, have a great resemblance to those of Louisiana, which
member of a federation, as Geneva is, has given to itself good laws without consulting her neighabours on the subject, giving them a noble and
wise example to follow, and not fearing that a mild legislation would
attract criminals. It is to be hoped, that this example will be followed
by us."  And he adds, —" It is easy to make this experiment.  All the
world will approve it.  The glory will be reflected on the whole nation,
and history will certainly make honourable mention of the people which
shall first renounce a practice no longer required by necessity, which
alone could excuse it.": He who can accuse nime of vanity in making this and similar citations, is incapable of comprehending how utterly this miserable boyish
feeling is incompatible with the fiame of mind necessary for the consideration of subjects on which the happiness of a nation may depend.
Feeling myself superior to such suspicions, I shall not sactrifice any
thing that I think may promote the great object to the fear of incurring
them.
(a) Report on the Plan of a Penal Code, p. 50.




THE CODE OF CRIMES AND PUNISHMENTS.     193
scarcely possible to imagine, and certainly impossible to
trace, any other state than that of the social-it is found
wherever men are found, and must have existed as soon
as the number of the species were sufficiently multiplied
to produce it. Man, then, being created for society, the
Creator of man must have intended that it should be
preserved; and as he acts by general laws, not by special
interference (except in the cases which religion directs to
believe), all primitive society, as well as the individuals
of which it is composed, must have been endowed with
certain natural rights and correspondent duties, anterior
in time and paramount in authority to any that may be
formed by mutual consent. The first of these rights,
perhaps the only one that will not admit of dispute, is,
as well on the part of the individual as of the society,
the right to continue the existence given by God to man,
and by the nature of man, to the social state in which he
was formed to live: and the correspondent mutual duty
of the individual and of the society is to defend this
right; but when the right is given, the means to enforce
it must, in natural as well as positive law, be admitted to
be also given. If, then, both individuals and the society
have the right to preserve their several existence, and
are, moreover, under the reciprocal duty to- defend it
when attacked, it follows that, if one or the other is
threatened with destruction, which cannot be averted but
by taking the life of the assailant, the right, nay more,
the duty to take it exists: the irresistible impulse of
nature indicates the right she has conferred, and her first
great law shows that life may be taken in self-defence.
It is true the aggressor has the same right to exist; but
if this right were sacred while he was attempting to
destroy that of another, there would be co-existing two
equal and conflicting rights, which is a contradiction in
terms. The right, therefore, I speak of, is proved; but
both in the individual and in society it is strictly defensive-it can only be exerted during that period when the
danger lasts, by which I mean when the question is,
which of the two shall exist, the aggressor or the party
N




194            INTRODUCTORY REPORT TO
attacked, whether this be an individual or the society.
Before this crisis has arrived, or after it has passed, it is
no longer self-defence, and then their rights to enjoy
existence would be co-existent and equal, but not conflicting, and for one to deprive the other of it would be of
course unjust.
Therefore, the positions with which I set out seem to
be proved. That the right to inflict death exists, but
that it must be in defence, either of individual or social
existence (a); and that it is limited to the case where
no other alternative remains to prevent the threatened
destruction.
In order to judge whether there is any necessity for
calling this abstract right into action, we must recollect
the duty imposed upon society of protecting its members,
derived, if we have argued correctly, from the social
nature of man, independent of any implied contract.
While we can imagine society to be in so rude and
imperfect a state as to render the performance of this
duty impossible without taking the life of the aggressor,
we must concede the right. But is there any such state
of society? Certainly none in the civilized world, and
our laws are made for civilized man. Imprisonment is
an obvious and effectual alternative; therefore, in civilized
society, in the usual course of events, we can never suppose it necessary, and of course never lawful: and even
among the most savage hordes, where the means of
detention might be supposed wanting, banishment, for
the most part, would take away the necessity of inflicting
death. An active imagination, indeed, might create cases
and situations in which the necessity might possibly exist
-but if there are any such, and they are sufficiently
probable to justify an exception in the law, they should
be stated as such, and they would then confirm the rule;
but by a perversity of reasoning in those who advocate
this species of punishment, they put the exception in the
(a) This explains the part of the report on the Plan of a Penal Code
which relates to the comparison between the evil of the offence and the
punishment.




THE CODE OF CRIMES AND PUNISHMENTS.       195
place of the rule, and what is worse, an exception of
which the possibility is doubtful.
It may be observed, that I have taken the preservation
of life as the only case in which even necessity could give
the right to take life, and that for the simple reason, that
this is the only case in which the two natural rights of
equal importance can be balanced; and in which the
scale must preponderate in favour of him who defends
against him who endeavours to destroy. The only true
foundation for the right of inflicting death is the preservation of existence. This gift of our Creator seems, by the
universal desire to preserve it which he has infused into
every part of his animal creation, to be intended as the
only one which lie did not intend to place at our disposal.
But, it may be said, what becomes of our other rights?
Are personal liberty, personal inviolability and private
property to be held at the will of any strong invader?
How are these to be defended, if you restrain the right
to take life to the single case of defence against an attack
upon existence? To this it is answered: Society being
a natural state, those who compose it have collectively
natural rights. The first is that of preserving its existence; but this can only be done by preserving that of
the individuals which compose it. It has, then, duties
as well as rights; but these are wisely ordered to be
inseparable. Society cannot exert its right of self-preservation without, by the same act, performing its duty
in the preservation of its members. Whenever any of
those things which are the objects of the association, life,
liberty or property, are assailed, the force of the whole
social body must be exerted for its preservation; and
this collective force, in the case of an individual attack,
must, in ordinary cases, be sufficient to repel it without
the sacrifice of life; but in extraordinary cases, when the
force of the assailants is so great as to induce them to
persevere in a manner that reduces the struggle to one
for existence, then the law of self-defence applies.
But there may be a period in which individual rights
may be injured before the associated power can interfere.




196            INTRODUCTORY REPORT TO
In these cases, as the nature of society does not deprive
the individual of his rights, but only comes in to aid
their preservation, he may defend his person or property
against illegal violence by a force sufficient to repel that
with which he is assailed. This results clearly from the
right to property, to whatever source we may refer it,
and from that of personal inviolability, which is (under
certain restrictions imposed by nature itself) indubitably
a natural right.  As the injury threatened may not
admit of compensation, the individual may use force to
prevent the aggression; and if that used by the assailant
endangers his life (a), the question then again becomes
one of self-defence, and the same reasoning applies which
was used to show the right of taking life in that case.
But where the individual attacked can either by his own
physical force, or by the aid of the society to which he
belongs, defend himself or his property; when the attack
is not of such a nature as to jeopardize his own existence
in the defence of them; if he take the life of the
aggressor, under these circumstances, he takes it without necessity, and consequently without right. This is
the extent to which the natural law of self-defence allows
an individual to go in putting another to death. May
any association of individuals inflict it for any other
cause, and under any other circumstances? Society has
the right only to defend that which the individuals who
compose it have a right to defend, or to defend itselfthat is to say, its own existence, and to destroy any
individual, or any other society which shall attempt its
destruction.  But this, as in the case of individuals,
must be only while the attempt is making, and when
there is no other means to defeat it. And it is in that
sense only that I understand the word so often used, so
often abused, so little understood, necessity.  It exists
between nations during war; or a nation and one of its
(a) The existence of danger alone, is not a sufficient justification by
the English, nor I believe by other laws for homicide; it must be a
danger from which there is no other means of escape.




THIE CODE OF CRIMES AND PUNISHMENTS.    197
component parts in a rebellion or insurrection; between
individuals during the moment of an attempt against
life, which cannot otherwise be repelled; but between
society and individuals, organized as the former now
is, with all the means of repression and self-defence at
its command, never. I come, then, to the conclusion, in
which I desire most explicitly to be understood that,
although the right to punish with death might be
abstractedly conceded to exist in certain societies, and
under certain circumstances, which might make it necessary; yet, composed as society now is, these circumstances cannot reasonably be even supposed to occurthat therefore no necessity, and, of course, no right to
inflict death as a punishment does exist.
There is also great force in the reasonings which have
been used to rebut that, which founds the right to take
life for crimes on an original contract, made by individuals on the first formation of society. First, that no
such contract is proved, or can well be imagined.
Secondly, that if it were, it would be limited to the
case of defence. The parties to such contract could only
give to the society those rights which they individually
had; their only right over the life of another is to defend
their own; they can give that to society, and they can
give no more. In this case also, therefore, the right
resolves itself into that of doing what is necessary for
preservation.  The great inquiry then recurs-is the
punishment of death in any civilized society necessary
for the preservation either of the lives of its citizens
individually or of their social collective rights? If it
be not necessary, I hope it has been proved not to be
just; and if neither just nor necessary, can it be expedient? To be necessary, it must be shown that the lives
of the citizens and the existence of society cannot be
preserved without it. But can this be maintained in the
face of so many proofs? Egypt, for twenty years, during
the reign of Sabaco (a) —Rome, for two hundred and
(a) Diod. Sicubus.




198               INTRODUCTORY REPORT TO
fifty years —Tuscany, for more than twenty-five —
Russia (a), for twenty-one, during the reign of Elizabeth
-are  so many proofs to the contrary.  Nay, if those
are right who tell you that the penal laws of Spain were
abrogated by the transfer, this state itself gives an
unanswerable proof that no such necessity exists; for if
those laws were not in force, it is very clear that there
were none imposing the penalty of death, from the time
of the transfer in December 1803, to the 5th of May
1805, when our first penal law was passed. Yet during
that period, when national prejudices ran high; when
(a) As I use no historical fact with a desire that it should go for more
than it is worth, it is but proper to say, that I have never relied so much
upon the example of Russia as upon the others to which I refer; because,
although I have been able to procure no precise information on the subject, I am yet inclined to believe, that the punishment of the Knout was
preserved as an equivalent to that of death in many cases, and to death
in its most horrid form. It is thus described by Howard: " I saw two
criminals, a man and a woman, suffer the punishment of the knout.
They were conducted from prison by about fifteen hussars and ten
soldiers. When they arrived at the place of punishment, the hussars
formed themselves into a ring round the whipping post. The drum beat
a minute or two, and then some prayers were repeated, the populace
taking off their hats. The woman was taken first; and after being
roughly stripped to the waist, her hands and feet were bound with cords
to the post, a man standing before the post to keep the cords tight. A
servant attended the executioners, and both were stout men.  The
servant first marked his ground and struck the woman five times on the
back. Every stroke seemed to penetrate deep into the flesh. But his
master, thinking him too gentle, pushed him aside, took his place, and
gave all the remaining strokes himself, which were evidently more severe.
The woman received twenty-five and the man sixty. I pressed through
the hussars, and counted the number as they were chalked on a board.
Both seemed but just alive, especially the man, who had, however,
strength enough to receive a small donation with some signs of gratitude.
They were conducted back to prison in a little wagon. I saw the woman
in a weak condition some days after, but could not find the man any
more."  The enlightened successor of Alexander is pursuing, with energy
and zeal, a reform in the laws of the empire, which his great predecessor
began.  It will, without any doubt, put an end to such scenes as
Howard has described; and this code, if completed according to the
humane and liberal views of the emperor, will be a monument more
glorious than any that was ever erected to a conquering monarch.




THE CODE OF CRIMES AND PUNISHMENTS.    199
one government had abandoned, and the other had not
yet established its authority, there was not, I believe, a
single instance of murder, or of any attempt to destroy
the order of society: so that one argument or the other
must be given up. Either the Spanish laws existed, or
we ourselves furnish a proof that a nation may exist, in
peace, without the punishment of death. Societies have,
then, existed without it. In those societies, therefore, it
was not necessary. Is there anything in the state of ours
that makes it so? It has not, as far as I have observed,
been even suggested. But if not absolutely necessary,
have its advocates even the poor pretext that it is
convenient; that the crimes for which it is reserved
diminish under its operation in a greater proportion than
those which incur a different punishment? The reverse
is the melancholy truth. Murder, and those attempts
to murder, which are capitally punished, have increased
in some of the United States to a degree that not only
creates general alarm, but, by the atrocity with which
they are perpetrated, fix a stain on the national character
which it will be extremely difficult to efface. I might
rely for this fact on the general impression which every
member of the body I address must have on this subject;
but as the result is capable of being demonstrated by
figures, I pray their attention to the tables annexed
to this report, in which, although they are far from being
as complete as could be wished, they will see an increase
of those crimes that demonstrates, if anything can do it,
the inefficiency of the means adopted and so strangely
persisted in, of repressing them. The small number
of executions compared with the well authenticated
instances of the crime, shows that the severity of the
punishment increases the chance of acquittal; and the
idle curiosity which draws so many thousands to witness
the exhibition of human suffering at the executions;
the levity with which the spectacle is beheld, demonstrates its demoralizing and heart-hardening effects;
while the crimes committed at the very moment of the
example intended to deter from the commission, shows




200           INTRODUCTORY REPORT TO
how entirely inefficient it is. One instance of this is so
remarkable that I cannot omit its detail. In the year
1822 a person named John Lechler was executed at
Lancaster, in Pennsylvania, for an atrocious murder.
The execution was, as usual, witnessed by an immense
multitude; and of the salutary effect it had on their
feelings and morals, we may judge from the following
extract from  a newspaper printed in the neighbourhood (a). The material facts, which are stated in it,
having been since confirmed to me by unquestionable
authority:" It has long," says the judicious editor, "been a controverted point, whether public executions, by the parade
with which they are conducted, do not operate on the
vicious part of the community more as incitements to,
than examples deterring from, crime. What has taken
place in Lancaster would lead one to believe, that the
spectacle of a public execution produces less reformation
than criminal propensity. While an old offence was
atoned for, more than a dozen new ones were committed,
and some of a capital grade.  Twenty-eight persons were
committed to jail on Friday night for divers offences at
Lancaster, such as mnurder, larceny, assault and battery,
&c., besides many gentlemen lost their pocket-books,
where the pick-pockets escaped, or the jail would have
overflowed.
"In the evening, as one Thomas Burns, who was employed as a weaver in the factory near Lancaster, was
going home, he was met by one Wilson, with whom he
had some previous misunderstanding, when Wilson drew
a knife and gave him divers stabs in sundry places, which
are considered mortal. Wilson was apprehended and
committed to jail, and had the same irons put on him
which had scarcely been laid off long enough by Lechler
to get cold."
A letter, in answer to some inquiries I made on the
subject, adds to this information, that Wilson was one
(a) Yorktown Gazette.




THE CODE OF CRIMES AND PUNISHMENTS.            201
of the crowd who left his residence expressly to witness
the execution: and to take away all doubt that the
Gazette account was not exaggerated, that he has since
been convicted of the murder.
I pray the advocates for this punishment to reflect on
this example, to recollect that, detailed in my former
report, of the sale of forged notes in the chamber where
lay the corpse (a) of him who was that day executed for
a similar offence. I ask them seriously to ponder on
them, on the numerous other instances of a like nature
that must occur to them, and then to say whether they
can believe the punishment of death an efficient one for
murder.   The most serious and intense reflection has
brought my mind to the conclusion, not only that it fails
in any repressive effect, but that it promotes the crime.
The cause it is not very easy to discover, and still more
difficult to explain; but I argue from  effects —and when
1 see them general in their occurrence after the same
event, I must believe that event to be the efficient cause
which produces them, although I may not be able to
trace exactly their connection. This difficulty is particularly felt in deducing moral effects from physical causes,
or arguing from the operation of moral causes on human
actions. The reciprocal operations of the mind and body
must always be a mystery to us, although we are daily
witnesses of their effects. In nothing is this more apparent, or the cause more deeply hidden, than in that propensity which is produced on the mind to imitate that
(a) The following circumstance, which I find stated by a gentleman
at a public meeting in Southampton, in England, as having been detailed
by Mr. Buxton, is a stronger case:"An Irishman, found guilty of issuing forged bank notes, was executed, and his body delivered to his family. Wrhile his widow was
lamenting over the corpse, a young man came to her to purchase some
forged notes. As soon as she knew his business, forgetting at once both
her grief and the cause of it, she raised up the dead body of her husband,
and pulled from under it a parcel of the very paper for the circulation of
which he had forfeited his life. At that moment an alarm was given of
the approach of the police; and not knowing where else to conceal the
notes, she thrust them into the mouth of the corpse, and there the officers
found them."




202              INTRODUCTORY REPORT TO
which has been strongly impressed on the senses, and
that frequently in cases where the first impression must
be that of painful apprehension. It is one of the earliest
developments of the understanding in childhood. Aided
by other impulses, it conquers the sense of pain and the
natural dread of death.  The tortures inflicted on themselves by the fakirs of India, the privations and strict
penance of some monastic orders of Christians, and the
self-immolation of the Hindoo widows, may be attributed, in part to religion, in part to the love of distinction and fear of shame; but no one, nor all of these
united, except in the rare cases of a hero or a saint,
could produce such extraordinary effects, without that
spirit of imitation to which I have alluded. The lawgiver, therefore, should mark this, as well as every other
propensity of human nature; and beware how he repeats, in his punishments, the very acts he wishes to
repress, and makes them examples to follow rather than
to avoid.
Another reason, perhaps not sufficiently enlarged upon
in the former report, to show that it cannot be efficient,
is drawn from the uncertainty of its infliction-an uncertainty which reduces the chance of the risk to less than
that which is, in many instances, voluntarily incurred in
many pursuits of life. Soldiers march gaily to battle
with the certainty that many of them must fall-those
who commit a crime punishable with death always proceed with the hope that they will avoid detection. You
find men to affront death in all the shapes it can assume (a);
(a) In one of those imaginary characters, drawn by the great modern
painter of human passions and pursuits, after his most felicitous manner,
we have this reckless contempt of danger admirably personified in the
ferocious buccanier:
" Inured to danger's direst form,
Tornade and earthquake, flood and storm;
Death hath he seen by sudden blow,
By wasting plague, by torture slow,
By mine or breach, by steel or ball,
Knew all his shapes, and scorned them all."




THE CODE OF CRIMES AND PUNISHMENTS.         203
to pursue the most dangerous trades; to undertake the
most desperate enterprises, for the most trifling considerations. While there is a chance of escape, the happy disposition of our nature makes us always believe it will be
favourable to us. We seize the certain enjoyment that
is offered by glory, by profit, or even by convenience, and
we trust that we shall escape the uncertain danger. If
this is acknowledged in the common pursuits of life, why
should it be denied in the rarer instance of crime? The
great error of our laws is, an obstinate refusal to consider an offender against them as moved by the same
impulses, guided by the same motives, with the rest of
the community; refusing, in short, to consider him as a
man. They suppose him a demon or an idiot, and their
provisions are, accordingly, for the most part calculated
for a being actuated by perversity too incorrigible to be
amended, or by folly incapable of pursuing his own
happiness when the path is pointed out. If we, on the
contrary, were to frame our laws for man as he is, should
we consider that the threat of death would be an efficient
restraint to him who, before he commits the crime, takes
every measure that prudence can dictate to avoid discovery; and who, after that, calculates on the proverbial
uncertainty of the law; while many of us are not deterred
by a risk which we cannot flatter ourselves to avoid, for
a trifling gain or a momentary gratification. Yet it may
be said the good citizen incurs the risk of death, but not
of death in such a form; he would not, for the gratification or reward you speak of, incur the slightest risk of
infamy, although the greatest that can be presented of
honourable death does not affright him. This is most
true, and this is most conclusive in the argument. It is
not death, then, that is feared; it is death with ignominy.
Bertram is the beau ideal of a pirate; but the same contempt of death
is found, in a less degree, perhaps, to animate other freebooters —witness
the cool reply of one of them to a fellow-sufferer on the wheel:-" Why
do you make all this noise; (said he), did you not know that in our
profession we were subject to one malady more than the rest of the
world I "




204          INTRODUCTORY REPORT TO
But if it be that which makes death dreadful, will it not
make life intolerable? If the suffering of shame cannot
be endured during the short interval between conviction
and execution, how can it be borne spread over a
whole life?
But the murderer has no shame! —Then, according to
your argument, he has nothing to make him fear death
more, in his criminal pursuits, than you do in your honest
occupation of inhaling pestilence in an infected hospital,
or poison in the manufacture of mercury, or when you
are heroically facing it on the ocean or in the field.
Why, then, should the lesser risk, against which he
thinks he has guarded, deter him, when the greater,
which you know you must face, has no effect upon you?
Let no man, whose duty it is to determine on this
important measure, evade this question; if he decide it
as I think reason and the slightest knowledge of human
nature must direct, the denunciation of death must be
acknowledged to be no efficient bar to the commission
of the only crime in which you think proper to
employ it.
There is no point in the argument on which stronger
reasoning and more persuasive authority could be produced than on this, which has more than once been
necessarily introduced, for it connects itself with every
other. From the operation of the earliest written laws
of which history gives us any account, down to the present day, it has been invariably observed by all who
would take the trouble to think, that the inexecution of
penal laws was in exact proportion to their severity.
Those of Draco have become proverbial for this last
quality; and their cruelty has been generally supposed
a sufficient reason for their abolition by Solon. But the
fact is, that they were abolished, not so much by Solon,
as by the impossibility of carrying them into execution.
When the stealing an apple incurred the punishment of
death, what citizen would accuse-what witness would
testify-what assembly of the people would convictnay, what executioner would be found to present the




THE CODE OF CRIMES AND PUNISHMENTS.       205
poisoned cup? We are accordingly told, expressly, that
these laws were abolished, not by a formal decree, but by
the tacit and unrecorded consent of the Athenians (a).
I make no quotations from modern writers on penal law
to this point, for there is not one who has not given his
testimony in favour of the position I have taken; and
yet, by a most singular incongruity, each of them has a
favourite crime to which he thinks it inapplicable.
This is not an essay to prove the inutility, the danger,
and, if these are admitted, the crime of employing the
punishment of death.  Such a work would require a
methodical arrangement, and a research into the first
principles of penal law, which cannot be expected from
a mere explanatory report, in which heads of argument
are suggested without much order and with little development, leaving to the enlightened minds to which they
are addressed the task of pursuing, to all their consequences, the topics which are raised for consideration.
With this understanding, I shall add a few more
reflections on this subject, so interesting to our best
feelings.
All nations, even those the best organized, are subject
to political disorders, during which the violent passions
that are excited avail themselves of every pretext for
their indulgence; and parties, animated with the rage of
civil discord, mutually charge each other with the worst
intentions and blackest crimes; but even in the hottest
warfare of party rage, the destruction of a rival faction or
a dangerous leader is seldom attempted but by the
imputation of some crime; new laws are not made on
such occasions, but the existing laws are perverted and
misapplied; new punishments are not invented, but
those already known are rigorously enforced against
the innocent. This is the usual state of things in all
intestine commotions, and even after they have assumed
(a) Draconis leges, quoniam videbantur impendio acerbiores, non
decreto jussuque, sed facito illiteratoque Atheniensium consensu, obliteratae sunt." —Aulus Gellius, 1. 3, c. 18.




206           INTRODUCTORY REPORT TO
the shape of civil war, accompanied by all its horrors,
those who do not fall in the field are subjected to something like a trial before their lives are sacrificed. Murder,
on those occasions, arrays itself in the spotless ermine of
justice, covers itself with her robes, mounts her sacred
seat, borrows her holy language, adopts her forms, calls
its iniquitous sentence the judgment of the law; and
even when it stretches forth its bloody hand for execution, it wields her own weapon, and inflicts on the
innocent victim no other punishment than that which
previous laws had provided for guilt.
This is necessary, is inevitable, in cases of civil discord.
Whatever may be the projects of unprincipled leaders,
the people who compose their party and their strength
must be made to believe that those to whom they adhere
are the friends and supporters of the laws, and therefore
no violent open disregard of established forms would be
tolerated, even where the essentials of justice are violated;
forms speak to the senses, the substance of justice to the
understanding only-this last may be perverted by the
passions or imposed on by falsehood in fact, or sophistry
in argument; but the eyes and ears only are necessary
to observe a- violation of form. In the times I have
supposed-and they may afflict our country as they have
all others-it is of importance to sanction no penalty that
may be used to the destruction of your best citizens; they
are the most obnoxious to all parties; not partaking the
violence of either, they are suspected by both, and
become the first victims; and never has any revolutionary
or factious storm desolated any land, without the loss of
men lamented even by their mad executioners, after the
calm of peace had restored them to their senses. Beware,
then, how you sharpen the axe, and prepare the other
instruments of death, for the hand of party violence.
Beware how you so accustom the people to their use,
that whenever their judgment may be led astray so as to
think the innocent guilty, they may feel no shock in
witnessing the last agonies of a man whom they may
afterwards deplore as a national loss, and whose death




THE CODE OF CRIMES AND PUNISHMENTS.    207
they may feel as a national disgrace. I dwell upon this,
because I deeply feel its force.
History presents to us the magic glass on which, by
looking at past, we may discern future events. It is folly
not to read; it is perversity not to follow its lessons. If
the hemlock had not been brewed for felons in Athens,
would the fatal cup have been drained by Socrates? If
the people had not been familiarized to scenes of judicial
homicide, would France or England have been disgraced
by the useless murder of Louis or of Charles? If the
punishment of death had not been sanctioned by the
ordinary laws of those kingdoms, would the one have
been deluged with the blood of innocence, of worth, of
patriotism, and science, in her revolution? Would the
best and noblest lives of the other have been lost on the
scaffold, in her civil broils? Would her lovely and
calumniated queen, the virtuous Malsherbes, the learned
Condorcet-would religion, personified in the pious
ministers of the altar -courage and honour, in the host
of high minded nobles-and science, in its worthy representative Lavoisier-would the daily hecatomb of loyalty
and worth-would all have been immolated by the stroke
of the guillotine; or Russel and Sidney, and the long
succession of victims of party and tyranny, by the axe?
The fires of Smithfield would not have blazed; nor, after
the lapse of ages, should we yet shudder at the name of
St. Bartholomew, if the ordinary ecclesiastical law had
not usurped the attributes of divine vengeance, and by
the sacrilegious and absurd doctrine, that offences against
the deity were to be punished with death, given a pretext to these atrocities. Nor, in the awful and mysterious
scene on Mount Calvary, would that agony have been
inflicted, if by the daily sight of the cross, as an instrument of justice, the Jews had not been prepared to make
it one of their sacrilegious rage. But there is no end of
the examples which crowd upon the memory, to show the
length to which the exercise of this power, by the law,
has carried the dreadful abuse of it, under the semblance
of justice. Every nation has wept over the graves of




208             INTRODUCTORY REPORT TO
patriots, heroes and martyrs, sacrificed by its own fury.
Every age has had its annals of blood.
But not to resort to the danger of the examples in
times of trouble and dissension, advert once more to that
which was formerly urged, and to which I must again
hereafter return-that which attends its regular practice
in peace —the irremediable nature of this punishment,
when error, popular prejudice, or false or mistaken testimony, has caused its infliction to be ordered upon the
innocent; a case by no means of so rare occurrence as
may be imagined. It is not intended to enter into a
detail of those which I have myself collected; they are
not few, although they must necessarily bear a small proportion to those which were not within my reach. The
author of a book of high (a) authority on evidence, has
brought together several cases which are well authenticated. In France, in the short space of one year, I have
gathered from the public papers that seven cases occurred,
in which persons condemned to death by the primary
courts and assizes, have been acquitted by the sentence
of a superior tribunal on a reversal of the sentence (b).
In other states of our union these cases are not uncommon.
With us the organization of our courts prevents the correction of any error, either in law, or in fact, by a
superior tribunal. But every where it is matter of surprise that any cases should be discovered of these fatal
mistakes. The unfortunate. subjects of them are, for the
most part, friendless; generally their lives must have
been vicious, or suspicion would not have fastened on
them; and men of good character sometimes think it disreputable to show an interest for such men, or to examine
critically into the circumstances of their case. They are
deserted by their connexions, if they have any; friends
(a) Phillips on Evidence, Appendix.
(b) Is not this a striking lesson to teach us the necessity of providing
the means of correcting error in criminal as well as in civil cases-of
protecting life and liberty as well as property? The importance of the
subject may, perhaps, excuse my referring once more to the bill formerly
offered to the general assembly by the reporter.




THE CODE OF CRIMES AND PUNISHMENTS.                209
they have none.  They are condemned-executed-forgotten; and in a few days, it would seem, that the same
earth which covered their bodies has buried all remembrance of them, and all doubts of their innocence or guilt.
It is, then, not unreasonable to suppose, that many more
such cases have existed than those that have fortuitously
been brought to light (a). Would you retain a punishment that, in the common course of events, must be
irremediably inflicted, at times, on the innocent, even if it
secured the punishment of the guilty? But that is far
from  being the effect.  While you  cannot, in  particular
cases, avoid its falling upon innocence, that very cause,
(a) Let me give the substance of this objection to capital punishment
in the words of a man to whom the science of legislation owes the great
attention that is now paid to its true principles, and to whom statues
would be raised if the benefactors of mankind were as much honoured as
the oppressors of nations:-" The same objection," he says, " lies against
all afflictive penalties, that they cannot be remedied, but they may be
compensated. For death alone there is no resource. There is no man,
ever so little versed in criminal procedure, who does not feel a kind of
terror, when he thinks on how slight a circumstance the life of a man
under accusation for a capital crime, depends, and who does not recollect
instances in which individuals have owed their lives to some extraordinary circumstance, accidentally brought to light at the critical moment
of danger. The chances of danger are, without doubt, very different,
according to the different systems of procedure... but are there any
judiciary forms, which can guard, in perfect security, against the snares
of falsehood and the illusions of error? No! absolute security is a point
of perfection which may be approached much nearer than has yet been
done without reaching it; for witnesses may deceive, or be deceived 
the number of those who testify to the same fact is not an infallible
safeguard; and as to proofs which are drawn from circumstantial factscircumstances the most conclusive, in appearance-those which it would
seem impossible to explain, but on the supposition of guilt-even these
may be the effect of chance, or of preconcerted circumstances, arranged
by interested persons. The only proof which would appear to bring
complete conviction, the free confession of the accused, besides its being
very rare, does not always give absolute certainty-since men have been
found, as in the case of witchcraft, to confess themselves guilty of a
crime that it was impossible to commit.  Those are not imaginary
alarms, drawn from simple possibilities; there are no criminal records
that do not present examples of these fatal mistakes-and those which,
by a concurrence of singular events, have become known, give us reason
0




210               INTRODUCTORY REPORT TO
from the imperfection of all testimony, will make it more
favourable to the escape of the guilty; and the maxim,
so often quoted on this occasion (a), will no longer be
perverted in order to effect a compromise between the
conscience of the juror and the severity of the law, when
your punishments are such only as admit of remission
when they have been found to be unjustly imposed.
Other arguments, not less forcible, other authorities
equally respectable, might be adduced to show the ill
effects of this species of punishment; but the many
topics that are still before me in this report, oblige me to
pursue this one no further than to inquire what good can
be expected, or what present advantage is derived, from
retaining this punishment?  Our legislation surrendered
it without a struggle, in all cases, at first, but murder,
attempt to murder, rape, and servile insurrection; and
afterwards extended it to a species of aggravated burglary(b). Now, as these cases are those only in which it
has been deemed expedient.to retain this punishment,
to suspect many innocent victims unknown. It may even be observed,
that the cases in which the word evidence is most frequently used, are
those in which the testimony is most doubtful.  When the alleged
crime is one of those which excites the most antipathy, or heightens the
spirit of party, the witnesses unconsciously become accusers; they are
no more than the echoes of public clamour; the fermentation increases
by its own action, and it is no longer permitted to doubt. It was a
frenzy of this kind which first seized the people, and was afterwards
communicated to the judges in the unfortunate affair of Calas."-Theory
of Rewards and Punishments, Bentham.
(a) That it is better ten guilty should escape than one innocent suffer,
is invariably given to the jury as a maxim in all capital cases, depending
on circumstantial evidence; and where there are no irritating causes, it
invariably succeeds.
(b) Act of 20th March 1818, sec. 3. Breaking into a dwelling-house
in the night time, with intent to steal, &c. so far this crime was already
punishable under the act of 1805. The severe punishment of death is
added, if any person was lawfully within the house, and if the offender
was armed with a dangerous weapon; or if not so armed, if he armed
himself in the house, or made an assault on the person then being in the
house lawfully. If the occupier of the house was not there lawfully, the
offender escapes death! What a circumstance on which to hang the life
of a man.  If the tenant has a good lease, the robber is hanged, if he is




THE CODE OF CRIMES AND PUNISHMENTS.           211
as it has been abandoned in all others, the serious
inquiry presents itself, why it was retained in these, or
why abandoned in the others? Its inefficiency, or some of
the other objections to it, must have been apparent in all
the other numerous offences in which it has been dispensed with, or it would certainly have been retained or
restored.  Taking this acknowleged inefficiency, in the
numerous cases, for the basis of the argument, let us
inquire whether there is anything which makes it peculiarly adapted to the enumerated crimes, which it is
unjust or inexpedient to apply to any of the others? We
have three modes of discovering the truth on this subject: by reasoning from the general effects of particular
motives on human actions; by analogy, or judging from
the effects in one case to the probable effects in another;
or by experience of the effect on the particular case.
The general reasoning upon the justice and efficacy of the
punishment will not be repeated here, but it is referred
to as being conclusive as to all offences, and admitting of
no exception that would apply to murder, or either of the
three other cases in which our laws inflict it.  If we
reason from analogy, we should say the only argument
ever used in favour of death as a punishment is, that the
awful example it presents will deter from the commission
of the offence; but by your abandonment of it in all
cases but these, you acknowledge it has no efficacy there.
Analogy, therefore, would lead us to the conclusion that,
if it was useless in the many cases, it would be so in the
few. But it is acknowledged that no analogy, or any
other mode of reasoning, no theory, however plausible,
ought to influence when contradicted by experience.
You have tried this remedy, and found it ineffectual!
an intruder, he escapes death. Again, if the robber meets nobody in the
house and steals ten thousand dollars, he only suffers imprisonment; but
if he sees a servant, and shakes his fist at him, he is hanged, althougll he
should steal nothing. If he breaks in without weapons, and rifles the
house of all its contents, he is imprisoned only; if he finds a fowlitlgpiece, and carries it off in his hand, lie is hanged. Another specimen of
the laws which nothing but presumption could attempt to amend.




212           INTRODUCTORY REPORT TO
The crimes to which you have applied it are decreasing
in number and atrocity under its influence! If so, it
would be imprudent to make any change, even under the
most favourable prospects that the new system would be
equally efficient. Let us try it by this test. For the
first three years after the transfer of the province, there
was not a single execution or conviction for either of
these crimes. In the course, however, of the first six
years, four Indians, residing within the limits of the
state, made an attack on some of the settlers, and were
either given up by the tribe, or arrested and condemned,
and two were executed as for murder, and one negro
was condemned and executed for insurrection. In the
next six years there were ten convictions; in the succeeding four, to the month of January 1822, fourteen;
so that we find the number of convictions for the enumerated crimes have nearly doubled in every period of
six years, in the face of this efficient penalty. But the
population of the state doubles only once in twenty
years; therefore the increase of this crime progresses in
a ratio of three to one to that of the population; and
we should not forget, in making this calculation, the
important and alarming fact that numerous instances of
homicide and attempts to kill occur, which are rarely
followed by prosecution, and more rarely still by conviction. I mean, all that class that have their origin in
a mistaken sense of honour, including not only the lives
sacrificed to the tyranny of public opinion in duels, but
those less excusable and increasing cases of wounds and
death, inflicted in atonement for some injury offered to
personal dignity. Under the statute against stabbing, I
find but three convictions up to the year 1822; one
instance of rape to the same period; and, what is somewhat singular, not a single instance of burglary from
1805 until 1820, in which year, and the succeeding one,
there were two cases, just two years after it was made a
capital crime. What are we to conclude from this statement?  First, I think, that, of burglary, one of the
crimes to which capital punishment is annexed, fifteen




THE CODE OF CRIMES AND PUNISHMENTS.             213
years' experience (during which there was not a single
conviction, and as far as is known, not a single indictment under the law which denounced imprisonment as
the penalty) ought to have convinced us, that the severer
punishment was not necessary, while the two convictions
which so soon succeeded the promulgation of that law,
are strong testimony that the punishment of death is
not an effectual remedy for the evil.  As to rape, that
its rare occurrence is much more properly to be attributed to the manners of the age than to any fear of the
punishment annexed; for if that were the efficient cause,
we should certainly find it at least as powerful in the
case of murder, a crime to which the offender is not
stimulated as in the former case, by the strongest sensual
appetite.
Besides, this is not the strong hold of those who argue
in favour of capital punishment. Driven from every other
ground, they defend it as peculiarly applicable to the case
of murder.   The  slow  abandonment of  it for other
offences, is a proof of the gradual advance of true principles, and the pertinacity with which it is adhered to in
this, shows the force of early impressions and inveterate
prejudice, even in the most enlightened minds: yet that
prejudice must in time yield to the evidence offered by
the practical results which have attended this inflictionresults which show, almost to demonstration, that the
public exhibition of homicide, directed by the sacred voice
of the law, so far from repressing, does but encourage it,
in private quarrels. It is commonly advocated on the
principle of vindictive justice (a), and can be, with a due
(a) I had once a conversation with an exalted magistrate, a man of
high attainments and great liberality, on the abolition of this punishment. He acceded to the propriety of the measure, in all cases but
murder; because of the difficulty of keeping the offender, and the severity
of solitary confinement, which was proposed to be substituted. But
when these two objections were, as I thought, satisfactorily answered, he
replied by one of the exclamations used in the text, and added, very
frankly-" I must confess that there is some little feeling of revenge at
the bottom of my opinion on this subject." If all other reasoners were
equally candid, there would be less difficulty in establishing true
doctrines.




214           INTRODUCTORY REPORT TO
regard to facts, on no other. The murderer deserves
death! He that sheds man's blood, by man shall his
blood be shed! Blood for blood! These are the exclamations that are used instead of argument.  Such
sentiments, combined with the spectacle of legal revenge
which they dictate, can produce but one effect. Half the
odium and horror of taking human life is lost, by the
example of seeing it made a public duty, while the
motives are sanctified which are but too apt to justify it
in the mind of an irritated individual, who magnifies the
injury he has received, overlooks the provocation he
gave, and thinks himself excusable in doing, to satisfy
his passions, that which public justice does from the same
motive, revenge. The sensation of horror with which we
see a human being suffering a violent death, would certainly be increased, if the hand of justice was never
employed in the unholy work; and private vengeance
would be checked by the laws, when they no longer
encouraged it by their example.
But however this vindictive feeling may betray itself
in the warmth of conversation, it is not brought forward
in any serious argument;'there it is too universally exploded. What then is said? That it is a punishment
proportioned to the crime; that, as murder is the highest
of all offences, death, the greatest of all punishments,
ought to be applied to it. But why ought it to be so
applied? To apportion the punishment to the offence,
does not mean to make the culprit suffer the same
quantity of evil which he inflicted by his crime; that
would be both impossible and unjust. It means, that
the punishment should be such as to deter from the commission of the crime, but no greater. If, then, death has
not this effect, why ought it to be applied? But that it
has not this effect, is shown by reasoning and by fact.
Why then will you continue to apply it? Pressed by
this inquiry, we have the same eternal answer-murder
deserves death. Out of this circle no reasoning can drive
them. Sometimes, indeed, we are asked, are you sure
that if we give up this punishment, your substitute will




THE CODE OF CRIMES AND PUNISHMENTS.        215
prove effectual. If you mean so effectual as to eradicate
the crime, I answer, No! But I am  as sure as experience and analogy, and reasoning united, can make me,
that it will be more effectual. What is it we fear? Why
do we hesitate? You know, you cannot deny, that the
fear of the gallows does not restrain from murder. We
have seen a deliberate murder committed in the very
crowd assembled to enjoy the spectacle of a murderer's
death; and do we still talk of its force as an example?
In defiance of your menaced punishment, homicide stalks
abroad and raises its bloody hand at noon-day in your
crowded streets; and when arrested in its career, takes
shelter under the example of your laws, and is protected
by their very severity, from punishment. Try the efficacy
of milder punishments; they have succeeded. Your own
statutes, all those of every state in the union, prove that
they have succeeded, in other offences; try the great
experiment on this also.  Be consistent; restore capital
punishments in other crimes, or abolish it in this. Do
not fear that the murderers from all quarters of the earth,
seduced by the mildness of your penal code, will choose
this as the theatre of their exploits. On this point we
have a most persuasive example. In Tuscany, as we
have seen, neither murder nor any other crime was
punished with death, for more than twenty years, during
which time we have not only the official declaration of
the sovereign, that "all crimes had diminished, and those
of an atrocious nature had become extremely rare," but
the authority of the venerable Franklin, for these conclusive facts; that in Tuscany, where murder was not
punished with death, only five had been committed in
twenty years; while in Rome, where that punishment is
inflicted with great pomp and parade, sixty murders were
committed in the short space of three months, in the city
and its vicinity (a). " It is remarkable," he adds to this
(a) If ever any philosophy deserved the epithets of useful and practical,
it was that of Dr. Franklin. His opinions must have weighlt, not only
from his character, but from the simple, intelligible reasoning by which
they are supported.  What says this venerable and irreproachable




216               INTRODUCTORY REPORT TO
account, "that the manners, principles, and religion  of
the inhabitants of Tuscany, and of Rome, are exactly the
same. The abolition of death alone, as a punishment for
murder, produced this difference in the moral character
of the two nations." From this it would appear, rather
that the murderers of Tuscany were invited, by the severe
punishments in the neighbouring territories of Rome,
than that those of Rome were attracted into Tuscany by
their abolition. We have nothing to apprehend, then,
from this measure; and if any ill effects should follow the
experiment, it is but too easy to return to the system of
extermination.
witness in the cause of humanity, which we are now pleading?-" I suspect the attachment to death, as a punishment for murder, in minds
otherwise enlightened upon the subject of capital punishments, arises
from a false interpretation of a passage in the old testament, and that is
-' He that sheds the blood of man, by man shall his blood be shed.'
This has been supposed to imply, that blood could only be expiated by
blood. But I am disposed to believe, with a late commentator on this
text* of scripture, that it is rather a prediction than a law.  The
language of it is simply, that such is the folly and depravity of man,
that murder, in every age, shall beget murder. Laws, therefore, which
inflict death for murder, are, in my opinion, as unchristian as those which
justify or tolerate revenge; for the obligations of Christianity upon individuals, to promote repentance, to forgive injuries, and to discharge the
duties of universal benevolence, are equally binding upon states.
" The power over human life is the sole prerogative of him who gave
it. Human laws, therefore, are in rebellion against this prerogative,
when they transfer it to human hands.
" If society can be secured from violence by confining the murderer,
so as to prevent a repetition of his crime, the end of extirpation will be
% "I hope I shall not offend any one by taking the liberty to put my
own construction on this celebrated passage, and to inquire, why it
should be deemed a precept at all? To me, I must confess, it appears
to contain nothing more than a declaration of what will generally happen:
and in this view to stand exactly upon the same ground with such passages as the following —' He that leadeth into captivity, shall go into
captivity' —' He that taketh up the sword, shall fall by the sword.' The
form of expression is precisely the same in both texts. Why then may
they not all be interpreted in the same manner, and considered, not as
commands, but as denunciations? and if so, the magistrate will no more
be bound by the text in Genesis, to punish murder with death, than he
will by the text in the Revelations, to sell every Guinea captain to our
West India planters."-Rev. W. Turner.




THE CODE OF CRIMES AND PUNISHMENTS.               217
One argument, the ferocious character impressed on
the people by this punishment, which was insisted on in
the first report, has been so strongly illustrated by a
subsequent event in Pennsylvania, that I cannot omit
stating it. After the execution of Lechler had gratified
the people about York and Lancaster with the spectacle
of his death, and had produced its proper complement of
answered. In confinement he may be reformed; and if this should prove
impracticable, he may be restrained for a term of years that will probably
be co-eval with his life.
"There was a time when the punishment of captives with death or
servitude, and the indiscriminate destruction of peaceable husbandmen,
women, and children, were thought to be essential to the success of war,
and the safety of states. But experience has taught us that this is not
the case; and in proportion as humanity has triumphed over these
maxims of false policy, wars have been less frequent and terrible, and
nations have enjoyed longer intervals of internal tranquillity. The virtues
are all parts of a circle. Whatever is humane, is wise; whatever is wise,
is just; and whatever is wise, just, and humane, will be found to be the
true interest of states, whether criminals or foreign enemies are the subject of their legislation.
" For the honour of humanity it can be said, that in every age and
country, there have been found persons in whom uncorrupted nature has
triumphed over custom and law. Else, why do we hear of houses being
abandoned near to places of public execution? Why do we see doors
and windows shut the days and hours of criminal executions? Why do
we hear of aid being secretly afforded to criminals to mitigate or elude
the severity of their punishments? Why is the public executioner of the
law a subject of such general detestation? These things are latent
struggles of reason, or rather, the secret voice of God himself, speaking
in the human heart, against the folly and cruelty of public punishments.
"I shall conclude this inquiry by observing, that the same false
religion and philosophy which once kindled the fire on the altar of persecution, now dooms the criminal to public ignominy and death. In
proportion as the principles of philosophy and Christianity are understood, they will agree in extinguishing the one and destroying the other.
If these principles continue to extend their influence upon government,
as they have done for some time past, I cannot help entertaining a hope,
that the time is not very distant, when the gallows, the pillory, the
stocks, the whipping-post, and the wheel-barrow (the usual engines of
public punishment), will be connected with the history of the rack and
the stake, as marks of the barbarity of ages and countries, and as
melancholy proofs of the feeble operation of reason and religion on the
human mind." —Inquiry upon Public Punishments.




218               INTRODUCTORY REPORT TO
homicide and other crimes, a poor wretch was condemned
to suffer the same fate, for a similar offence, in another
part of the state, where the people had not yet been
indulged with such a spectacle. They, also, collected by
thousands  and  tens of thousands.   The  victim  was
brought out.   All the  eyes in  the  living  mass that
surrounded the gibbet were fixed on his countenance,
-and they waited with strong desire, the expected signal
for launching him into eternity. There was a delay.
They grew impatient; it was prolonged, and they were
outrageous; cries like those which precede the tardy
rising of the curtain in a theatre were heard. Impatient
for the delight they expected in seeing a fellow-creature
die, they raised a ferocious cry. But when it was at last
announced that a reprieve had left them no hope of
witnessing his agonies, their fury knew no bounds; and
the poor maniac-for it was discovered that he was
insane-was with difficulty snatched by the officers of
justice from the fate which the most violent among them
seemed determined to inflict (a).  This is not an overcharged picture; the same savage feeling has been more
than once exhibited in different parts of the union, and
will always be produced by public executions, unless it is
replaced by the equally dangerous feeling of admiration
and interest for the sufferer (b). Which of the two is to
(a) This disgraceful scene took place at Orwigsburgh.  The wretched
madman who was so near suffering, was named Zimmerman. I have
the details from a gentleman of the first respectability in Pennsylvania;
my informant adds to his account of this transaction —" Executions in
this state are scenes of riot and every species of wickedness; twenty,
thirty, and forty thousand persons have been in attendance on such
occasions. In country parts, two and even three days are employed
in the merry-making, much after the manner of fairs in former times."
(b) The tendency of public executions at times to elevate the sufferer
to the honours of saintship, and lose the detestation due to his crime in
admiration for the piety of the new convert, is not confined to the United
States. The scene described in the first report, of the execution of the
mail robbers at Baltimore, has been represented in other countries. A
note to that part of the report in a German translation, says —" One
would think that the author was an eye-witness to the execution of the
murderer Jonas in this place-so exactly is the scene described."




THE CODE OF CRIMES AND PUNISHMENTS.    219
prevail, depends on circumstances totally out of the
power of the lawgiver or the judge to foresee or control;
but by the indulgence of either feeling, every good end
of punishment is totally defeated.
I cannot, I ought not, to dismiss this subject without
once more pressing on the most serious consideration of
the legislature an argument which every new view of it
convinces me is important; and, if we listen to the
voice of conscience, conclusive: the irremediable nature
of this punishment.  Until men acquire new faculties,
and are enabled to decide upon innocence or guilt
without the aid of fallible and corruptible human
evidence, so long will the risk be incurred of condemning
the innocent. Were the consequence felt as deeply
as it ought to be, would there be an advocate for that
punishment, which, applied in such case, has all the
consequences of the most atrocious murder to the innocent sufferers-worse than the worst murderer! He
stabs, or strikes, or poisons, and the victim dies-he dies
unconscious of the blow-without being made a spectacle
to satisfy ferocious curiosity, and without the torture of
leaving his dearest friends doubtful of his innocence, or
seeing them abandon him under the conviction of his
guilt; he dies, and his death is like one of those
inevitable chances to which all mortals are subject; his
family are distressed, but not dishonoured; his death is
lamented by his friends, and, if his life deserved it,
honoured by his country.  But the death inflicted by
the laws, the murder of the innocent under its holy
forms, has no such mitigating circumstances. Slow in its
approach, uncertain in its stroke, its victim feels not only
the sickness of the heart that arises from the alternation
of hope and fear, until his doom is pronounced, but when
that becomes inevitable, alone, the tenant of a dungeon
during every moment that the cruel lenity of the law
prolongs his life, he is made to feel all those anticipations, worse than a thousand deaths. The consciousness
of innocence, that which is our support under other
miseries, is here converted into a source of bitter anguish,




220           INTRODUCTORY REPORT TO
when it is found to be no protection from infamy and
death; and when the ties which connected him to his
country, his friends, his family, are torn asunder, no consoling reflection mitigates the misery of that moment.
He leaves unmerited infamy to his children; a name
stamped with dishonour to their surviving parent, and
bows down the grey hairs of his own with sorrow to the
grave. As he walks from his dungeon, he sees the
thousands who have come to gaze on his last agony; he
mounts the fatal tree, and a life of innocence is closed by
a death of dishonour. This is no picture of the imagination. Would to God it were! Would to God that, if
death must be inflicted, some sure means might be discovered of making it fall upon the guilty. These things
have happened. These legal murders have been committed! and who were the primary causes of the crime?
Who authorized a punishment which, once inflicted, could
never be remitted to the innocent? Who tied the cord,
or let fall the axe upon the guiltless head? Not the
executioner, the vile instrument who is hired to do the
work of death; not the jury who convict, or the judge
who condemns; not the law which sanctions these errors,
but the legislators who made the law; those who, having
the power, did not repeal it. These are the persons
responsible to their country, their consciences, and their
God. These horrors not only have happened, but they
must be repeated: the same causes will produce the
same effects. The innocent have suffered the death of
the guilty; the innocent will suffer. We know it. The
horrible truth stares us in the face. We dare not deny,
and cannot evade it. A word, while it saves the innocent, will secure the punishment of the guilty, and shall
we hesitate to pronounce it 3 Shall we content ourselves
with our own imagined exemption from this fate, and
shut our ears to the cries of justice and humanity?
Shall " sensibility"'as has been finely observed) "sleep
in the lap of luxury" (a), and not awake at the voice of
wretchedness? I urge this point with more earnestness,
(a) Eden. Principles of Penal Law.




THE CODE OF CRIMES AND PUNISHMENTS.    221
because I have witnessed more than one condemnation
under false constructions of law, or perjured, or mistaken
testimony; sentences that would now have been reversed
if the unfortunate sufferers were within the reach of
mercy. I have seen, in the gloom and silence of the
dungeon, the deep concentrated expression of indignation
which contended with grief; have heard the earnest
asseverations of innocence, made in tones which no art
could imitate; and listened with awe to the dreadful
adjuration, poured forth by one of these victims with an
energy and solemnity that seemed superhuman, summoning his false accuser and his mistaken judge to meet him
before the throne of God. Such an appeal to the high
tribunal which never errs, and before which he who made
it was in a few hours to appear, was calculated to create
a belief of his innocence; that belief was changed into
certainty; the perjury of the witness was discovered, and
lie fled from the infamy that awaited him; but it was
too late for any other effect than to add one more
example to the many that preceded it of the danger,
and I may add impiety, of using this attribute of the
divine power, without the infallibility that can alone
properly direct it. And this objection alone, did none
of the other cogent reasons against capital punishment
exist, this alone would make me hail the decree for its
abolition as an event, so honourable to my country and
so consoling to humanity, as to be cheaply purchased by
the labour of a life.
I cannot quit this part of the subject without submitting to the general assembly the opinion of one
whose authority would justify an experiment even more
hazardous than this, but whose arguments are as convincing as his name is respectable. They are not the
opinions of one whom the cant which is used to cover
the ignorance of the day would call a theorist, but of a
man whose whole life was spent in the useful and honourable functions of the highest magistracy, whose name is
always mentioned with reverence, and whose doctrines
are quoted as authority, wherever the true principles of




222           INTRODUCTORY REPORT TO
legal knowledge are regarded.   Hear the venerable
D'Aguesseau:
" Who would believe that a first impression may sometimes decide the question of' life and death? A fatal
mass of circumstances, which seem as if fate had collected
them together for the ruin of an unfortunate wretch, a
crowd of mute witnesses (and from that character more
dangerous) depose against innocence; they prejudice the
judge, his indignation is roused, his zeal contributes to
seduce him; losing the character of the judge in that of
the accuser, he looks only to that which is evidence of
guilt, and he sacrifices to his own reasonings the man
whom he would have saved had he listened only to the
proofs of the law. An unforeseen event sometimes shows
that innocence has sunk under the weight of conjectures,
and falsifies the conclusions which circumstances had
induced the magistrate to draw.  Truth lifts up the
veil with which probability had enveloped her; but she
appears too late! The blood of the innocent cries aloud
for vengeance against the prejudice of his judge; and
the magistrate passes the rest of his life in deploring a
misfortune which his REPENTANCE CANNOT REPAIR" (a).
The earnestness for this reform is sometimes reproached
to its advocates as proceeding from a childish fear, that
magnifies the apprehension of that which we know is
appointed to us all. Not so. The value of life is not
overrated in the argument. There are occasions in which
the risk of its loss must be incurred; in which the certainty of death must be encountered with firmness and
composure. These occasions are presented by patriotism
in defence of our country and our country's rights; by
benevolence in the rescue of another from danger; by
religion, whenever persecution offers the martyr's crown
to the faithful; and it is not known or believed that
those who propose to abolish death as a punishment,
either fear it as a natural event or shun its encounter
when required by duty, more than those who think it
(a) D'Aguesseau, 16 Mercuriale.




THE CODE OF CRIMES AND PUNISHMENTS.        223
ought to be retained. He who preserved the life of a
Roman citizen was entitled to a more honourable recompense than the daring soldier who ventured his own by
first mounting the breach. The civic was preferred to the
mural crown.  The Romans, during the best period of
their history, reduced this abolition to practice.  " Far,"
said their great orator, endeavouring in a corrupted age
to restore the ancient feeling on the subject, "far (a)
from us be the punishment of death-its ministers-its
instruments.  Remove them, not only from  their actual
operation on our bodies, but banish them  from  our eyes,
our ears, our thoughts; for, not only the execution, but
the apprehension, the existence, the very mention of these
things is disgraceful to a freeman and a Roman citizen."
Yet the Romans were not very remarkable for a pusillanimous fear of death. In the age of which I speak,
they did not want the excitement of capital punishment
to induce them to die for their country. On the contrary,
it might, perhaps, be plausibly argued, that the servile
disposition, which disgraced the latter ages of the republic, was in some measure caused by the change, which
made the sacrifice of life the expiation for crime, instead
of the consummation and proof of patriotic devotion.
Conscious of having been guilty of much repetition,
and certain that I have weakened, by my version of
them, arguments much better used by others, I am yet
fearful of having omitted many things that might have an
effect in convincing any one of those to whom this report
is addressed.   The firm  religious belief I have of the
truth of the doctrine I advance, contrasted with the
sense of my incapacity to enforce it upon others, must
have produced obscurity where the interests of humanity
require there should be light, and confusion where the
performance of my great duty demands order. But the
(a) Carnifex et abductio capitis, et nomen ipsum crucis absit, non
modo a corpore civium Romanorum sed etiam a cogitatione, oculis
auribus-harum etiam omniurn rerum non solum eventus atque perpessio,
sed etiam conditio, expectatio, mnentio ipsa denique, indigna cive Romanc,
atque homine libero est. —Cicero pro Rabirio.




224           INTRODUCTORY REPORT TO
truth will appear in spite of these obstacles. From the
midst of the cloud, with which human imperfection has
surrounded her, her voice, like that of the Almighty from
the mount, will be heard reiterating to nations as well as
to individuals, the great command, "THou SHALT NOT
KILL.
Having, more fully than was intended, but much more
imperfectly than the subject demands, reviewed the great
characteristic that distinguishes the code, the total abolition
of capital punishment, it will be necessary to advert
(which will, hereafter, be very briefly done) to other
penalties, which, for reasons nearly as cogent, have been
also abrogated. As to the nature of the punishments, by
which these are proposed to be replaced, the principal one,
imprisonment in its various grades, is fully discussed in
the Code of Prison Discipline. Fines are retained, but
with modifications that lessen the force of the objections
usually made to that punishment. It is certain, that
indiscriminately applied to the poor and the rich, this is
one of the most unequal punishments that can well be
imagined; and that the wide range of discretion which
the apportionment of it must necessarily require to be
vested in the judge, is another strong objection; but
when that discretion is properly exercised, no penalty can
be so easily proportioned to the offence and to the circumstances of the offender; it is divisible in the most perfect
degree, and admits of complete compensation whenever it
has been improperly enforced. But yet it was foreseen that
cases would occur, in which the wealth of the offender might
make the highest range of a discretionary fine a penalty too
light to be felt; and in which his poverty might change
the lowest into utter ruin. To avoid as much as possible
these inconveniences, the fine, in most cases, is accompanied by a discretion to commute it into simple imprisonment, which may be inflicted on those whose circumstances would enable them to despise a fine; and on
the other hand, to avoid the oppression and ruin of the
poor, it is provided that no fine shall ever exceed onefourth of the clear property of the delinquent; and still




THE CODE OF CRIMES AND PUNISHMENTS.       225
further to secure the indigent from ruin, and at the same
time to provide for his punishment; where there is no
property, the fine is to be commuted into imprisonment,
calculating one day for every two dollars (a) of the fine,
limiting it, however, so that whatever may be the amount
of the fine, imprisonment shall not exceed ninety days.
Fines are also rendered more equal, when inflicted for a
breach of official duty, by apportioning them to the
amount of official emolument. There are also general
rules, intended to impress on the mind of the judge the
principles by which he ought to be guided, in the exercise
of the discretion vested in him by the law. These will be
found in the Code of Procedure, and the reasons for those
directions in the Introductory Report to that Code.
The collection of fines is regulated by the same rules
which govern executions in civil cases; giving to the
state no preference over other creditors, but from the
time of registering the order imposing the fine.
Considering fine as a personal punishment, the death of
the offender operates as a discharge at any time before it
is paid. Any other arrangement would make it operate
as a partial forfeiture upon his heirs.
Forfeiture and suspension of certain civil and political
rights are also punishments inflicted by the code.  They
are applied chiefly to misdemeanours in office, and to such
offences as show the want of the proper qualities to perform the duties which are required by them. These are
sparingly inflicted, because, if too frequent, it would
create a body of men in the community discontented with
their situation and ready to promote any violent change.
Among the civil rights, however, which are forfeitable,
is not found that of testifying. The reasons of making
this change, are set forth at some length in the Introductory Report to the Code of Evidence. Here it will
be sufficient to remark, that such a disqualification would
(a) This valuation of a day's imprisonment may seem high, but a just
regard for personal liberty induced a belief that double the standard of
daily wages would not be deemed excessive.
P




226           INTRODUCTORY REPORT TO
be a most serious punishment to persons whose property,
reputation, or life, might depend on the testimony of the
person disqualified, but could be none to him.
In apportioning punishments to different modifications
of the same offence, a mode has been adopted which
appeared simple and easily understood.  It is that of
directing the increase or diminution of the punishment for
the simple offence to be made by a fractional proportion;
for instance, the punishment for assisting at an unlawful
assembly, is fine from fifty to three hundred dollars, and
imprisonment from three to twelve months; but as this
offence is more reprehensible in a magistrate, or other
officer, it is provided, that if any such are guilty of it, the
penalty shall be doubled.  The same effect might be
produced by enacting in the article relating to such modification of the offences, that the punishment should be
fine from one hundred to six hundred dollars, and imprisonment not less than six nor more than twelve
months. But the contrary course was adopted; because,
being equally intelligible, it avoided repetition, which, as
all the conciseness consistent with perspicuity was studied
in framing the code, made it an object of some importance;
and because the precise proportion being enounced in
declaring the penalty, the aggravation or diminution of
the guilt was more readily impressed on the mind. A
reference to the rules for making these apportionments
will enable the general assembly to judge of the expediency of the provision. It is one, however, of mere
convenience; does not touch any of the essential features
in the code, and if disapproved, the same end may be produced by a labour nearly mechanical, of inserting the
augmentation and diminution at length in each of the
cases where it is directed to be proportionably increased
or diminished. The only very material objection to this
change would be increasing, without necessity, the bulk
of the work, and destroying the association of ideas which
it was intended to preserve.
Before entering into the examination which it is proposed to make of the classification and definition of the




THE CODE OF CRIMES AND PUNISHMENTS.      227
several offences, one or two of the general and peculiar
features of the code must be adverted to. The first is,
the enunciation of the general principles on which it is
founded. In the first arrangement of the work, this idea
occurred as one of the highest utility: and although it was
perfectly unprecedented, I was not deterred from the execution by its novelty. The advantages are recited in the
chapter itself, and need scarcely any elucidation (a). If
it be conceded, that the people ought to know, not only
what their agents have done, but their reasons for doing
it; that any work, and particularly that of legislation, will
be better done when the object is clearly defined, and the
means and rules for attaining it have been attentively
considered; that uniformity is necessary, and that it will
be better preserved by having a record of the grounds
upon which former laws were made; —if any of these
things be conceded, then is that part of the code a valuable improvement, provided it contains the true principles
of penal legislation-such as cannot change, and which, if
good now, will remain so for ever. These, once observed,
once acknowledged to be the rule; every future law will
be measured by their standard. Then, no more discordant
provisions; no more vacillating legislation; no more
accumulation of statutes upon the same matter; none of
those evils, in short, which are contrary to these principles. They will perform the office of a constitutional
rule, not, indeed, avoiding those laws which are made contrary to it, but preventing their very existence. I rely
more on the importance and utility of this part of the
work, because it is that which, both in its form and substance, has received the most decided approbation of all
those who, both in Europe and America, have made it
the subject of examination or criticism.
An introductory notice contains the explanation of
certain provisions intended, chiefly, to avoid circumlocution
and repetition, in the course of the work. The disgusting
tautology of the English statutes, from which our own
(a) Preamble to the Penal Code.




228                INTRODUCTORY REPORT TO
are not entirely  free, is by this means avoided.   The
strictness with which their judges adhered, at times, to
the letter of the statute, induced the necessity of ringing
all the changes which number, gender, and time required,
to bring within the words of the statute, every possible
case which they could govern, and the inconvenience has
been so much felt, that a bill has lately passed, containing,
in substance (a), the same enactments for avoiding it, that
are contained in the third chapter of the code I now
present.
One article of this chapter relates to another feature in
the system that is entirely new, but it is thought a very
important improvement. I mean the definition of all the
technical words or phrases used in the work. The utility of
this must be acknowledged by those whose objection to
the introduction of the new code is, that it will unsettle
(a) The following extract from Mr. Peel's speech, introductory to this
bill, will show, that this part of the plan has been deemed worthy of
adoption in Great Britain:-" I certainly have set the example to the
house of drawing up such bills for the future, in an intelligible manner.
Not being myself a lawyer, and possessing, of course, no technical knowledge, I do confess, sir, that there is no task which I contemplate with so
much distaste, as the reading through an ordinary act of parliament. In
the first place, the long recapitulations, the tedious references, the constant repetitions, the providing or designating offences as punishments
for the specific case of men, women and children, and for every degree
and relation in society, and the necessity of indicating these several personages and matters by as many appropriate relations and designationsthen the confusion resulting from the attempt to describe, and constantly
referring to many different descriptions of property. Really, sir, all
these various repetitions, recapitulations, and references are so tedious
and so perplexing, that I, for one, almost invariably find myself completely puzzled before I get to the end of a single clause. The mode I
have adopted in this bill to obviate all this confusion and uncertainty,
does seem to me, I speak it with submission, much more eligible and
precise than the usual phraseology, adopted in these acts, and might, I
cannot help thinking, be pursued with advantage in bills which may be
brought in hereafter. I will give you an example. It is enacted in my
bill, that if any person be convicted of entering into and stealing in any
house, room, &c. he shall be liable to a certain penalty; and in the conclusion of the act, that there may be no doubt arising from want of
specification of sex or the identity of the offender, there is a clause to
this effect:' And in order to remove all doubt as to the meaning and




THE CODE OF CRIMES AND PUNISHMENTS.             229
the signification that has been affixed, by judicial decisions,
to words most commonly used in statutes. Now if this
certainty be, as it unquestionably is, an advantage of the
first consequence; then its benefit must be in proportion
to the degree of certainty which is given; but judicial
decisions cannot, from their nature, give this certainty in
as great a degree as positive law; the book of definitions,
therefore, will be positive law, and in order to know the
sense in which any word is used in the code, it will be
only necessary to turn to its definition, instead of poring
over a countless number of volumes, and endeavouring,
from their incomplete or contradictory statements, to find
the sense in which it has, at times, been employed in
different cases. But it must be observed, that although
the endeavour has been to preserve as much as possible
the same words that are used in common parlance, to
express the same ideas, yet, whenever there was any
uncertainty, the signification has been fixed according to
the sense in which the expression is used in the code;
and that philological science has always been sacrificed to
certainty and precision. The Book of Definitions, therefore, must not be consulted as a dictionary of the language
of the country, but of that of the Code, whenever the
uncertainty of the former created the necessity of declaring
in what sense the term is employed.
I will not attempt to conceal from the general assembly,
the extreme difficulty of this part of my labour; more
than any other, it exercised my closest and intensest
intention of certain words in this act, be it hereby further enacted, that
whenever the words person, party, offender,' and so forth occur,'they
shall each and all of them be deemed to intend and demonstrate any
number of persons or parties, and of any sex, being the offender or
offenders under this act.' If any person, therefore, commit an offence
contemplated by that act, he will, under the general description, be
liable to the penalty affixed to such offence. My bill, therefore, will include every person, male, or female, and of every rank or condition of
offending under its enactments. Owing to the various lights in which
I have considered this provision and the extent which I have thus given
to the bill, I am afraid it will be impossible to frame one more comprehensive."




230           INTRODUCTORY REPORT TO
attention, and I think it has not been exercised in vain. I
think so, not only from the satisfaction of my own mind,
but from the approbation of men who have had the kindness to employ high intellect, enforced by official duty, to
the task of close thinking on legal subjects, in trying to
detect the errors of that part of the work: and who have
given me leave to say, that they have found none. These
venerable names, with the opinions they have given, will
be found in the appendix. But whatever weight is due
to this authority, I disavow any design of sheltering
myself or any thing I have done, behind it. It is the
duty of the general assembly to judge for themselves, and
for the people to whom they are accountable. To their
judgment I submit. Another advantage of this feature
in the system is this; that however imperfect it may be
at present, the law for giving effect to the code contains
enactments for its amendment and progression towards
that improvement, which all your penal laws, by this
arrangement, must gradually acquire.
The other articles of this chapter need no comment.
We come now to the Code itself. The first chapter of
the first book contains General Provisions. Most of them
are in exact conformity with what is generally supposed to
be the present laws, but so expressed as to leave no room
for doubt or cavil; some of them, however, deserve particular notice. The evil already pointed out, attending the
passage of successive penal laws on the same subject,
without repealing the first, is one so likely to recur, that
some general rules were thought necessary to regulate the
effect of such legislation. Reasoning from what ought to
be, rather than from what is, it might be supposed that
when a new penalty was created without repealing a
former law that had, also, imposed one, the legislature
intended to preserve both, and such has hitherto been the
construction; but, in fact, it is the very reverse; the new
penalty is, nine times in ten, intended as a substitute, and
the old law is suffered to stand merely through haste or
negligence.  An article provides for this, and declares




THE CODE OF CRIMES AND PUNISHMENTS.     231
that in such case, unless the contrary is expressed, the
former penalty shall be abrogated.
A more important disposition is that which declares
that there shall be but one mode of construing penal laws,
according to the plain import of tile words they employ,
and expressly abolishes what are called favourable and
strict constructions; in other words, permitting the court
sometimes to say that the law means more, sometimes
less, than the legislature intended.  Common  sense
acknowledges but the one mode, when the language is
clear and explicit. When the law is ambiguous, another
article provides the remedy. Such a law, if it purport
to impose a penalty, is void; and he who is accused of
contravening it, must be acquitted. In the fear, however,
that such general terms may sometimes be used as may
include an act which the legislature could not have intended to forbid, an article has been added since the code
was printed, specially providing, that in such cases, the
defendant must be acquitted, and the case reported to the
legislature; who may then more explicitly declare their
will to govern future cases.  A perusal of the statute
against concealed weapons, will exemplify the necessity
of this provision.  There, a knife is expressly called a
weapon, and the "wearing it in the coat, or any place
about the wearer, so that it do not appear in full view,"
makes him liable to a penalty, and subjects him to
search; wearing a penknife in a man's waistcoat pocket is
an offence within the plain meaning of the words of the
statute, employed in their usual sense; and yet it evidently could not be the intent of the legislature to make
this an offence. Other cases of the like kind may occur,
and the law should provide against inaccuracy, as well as
grosser faults.
Another article expressly forbids all convictions for
constructive offences; that is, offences that are created
by courts, and not by the legislature. The latter alone
are the proper organ for declaring what acts or omissions
shall be punished, and the text forbids the judiciary, for
reasons which it assigns, from interfering in their func



232              INTRODUCTORY REPORT TO
tions. Whether our courts have extended any offences,
by construction, is not known, nor can it be until some
means are taken to report and publish their decisions in
criminal cases; but it is certain that they adopt the constructive larcenies and forgeries of the English law (a),
and there is every reason to suppose that the same causes
will produce the same effects.  Those which we have
seen in another country, where the state of society and
manners are similar to our own, we may expect here.
It will not be denied that England has suffered the most
cruel evils by this exercise of judicial power. The restriction, then, in the text was necessary. We may,
hereafter, have a judge who may exercise his constructive ingenuity upon murders or burglary, or other
offences, as Jefferies did upon treasons.  Wise laws must
look beyond the present day; and it is their office to
foresee and counteract the effects of propensities which
tend to disturb or corrupt the order of society.
The second chapter of this book contains provisions
which, relating solely to prosecutions and trials, are
enlarged on in the text of the code of procedure, and
will be elucidated in the introductory report to  that
code. One only of these will be mentioned here, that
relating to the trial by jury, and this only for the purpose of referring to what has been said on that subject
in the first report, to which I need add nothing, and
from which all my subsequent reflections have suggested
nothing to retrench.
The third chapter contains the general provisions which
relate to persons amenable to the penal laws. Most of
them have no novelty to call for any explanation-some,
however, do. Citizens and inhabitants of the state may
be punished, as well for acts done out of the state as
(a) If one lends a horse to another, who rides away with him, Blackstone declares it is no larceny in 1779; and in 1786, by a construction
never before heard of, it was declared to be a larceny. Forgery was
originally confined to making the deed of another. It has been since
extended to a very different offence, making a deed in the true name, the
offender representing himself to be another person.




THE CODE OF CRIMES AND PUNISHMENTS.     233
for them within; but in the former case, only when it is,so expressly declared. The state has an undoubted right
to forbid and punish any acts done out of its jurisdiction,
which are calculated to produce an injury to its government or the rights of its citizens.  On this principle the
government of the United States made it penal (a) for
any citizen of the United States, although residing
abroad, to carry on any correspondence with a foreign
government, for the purpose of influencing its measures
with respect to the -United States; and also, under a
high penalty, forbids any citizen, without its limits, from
fitting out any vessel to cruise on a power with whom (b)
they are at peace. The general assembly will find this
principle acted upon in that part of the code which relates
to fraudulent insurances.
Children below nine years of age, cannot, as formerly,
be convicted of any crime; nor between that and fifteen,
unless on proof of sufficient understanding to know the
nature of an offence. The crimes of children of that age
are those of their parents or adult associates; and whatever may be the apparent depravity of an infant below
that age, the true correction is education and restraint.
These are fully provided for by the Code of Prison
Discipline; and the subject of juvenile criminality is so
fully discussed in the Introductory Report to that code,
that it is omitted here.
Offences committed by married women, under the influence or by the command of their husbands, and by
minors under the like control of any one to whom he
owes obedience, or by whom he may be supposed to be
influenced, present strong cases of extenuation on the
one part, and aggravation on the other, which, in this
chapter, are provided for by a correspondent increase and
diminution of punishment: this is new, but its justice
must be so apparent as to need no comment.
(a) Act for punishing certain crimes therein specified, 30th January
1799.
(b) Act of 20th April 1818, sect. 4.




234           INTRODUCTORY REPORT TO
There is some analogy between these cases and that of
a soldier. Taught by the severest discipline to obey,
without examination, the commands of superiors, it appeared to me that while such command ought not to
exempt him from punishment for the commission of a
crime, that there would be some cruelty and injustice in
making him liable for acts committed by such command
which are only misdemeanors.  In these cases, officers
giving or transmitting such illegal orders are alone made
liable. It is no objection to this, that the officer may
escape by leaving the state; so may the man; so may any
delinquent.
The circumstances are pointed out in this chapter, and
are again enlarged on in another part of the code, which
shall be a justification for executing the order of a magistrate, and for doing unlawful acts under duress. The
want of precise, intelligible, and accessible rules on both
these subjects, has led to much litigation and many prosecutions. It is hoped that those laid down in this chapter
are sufficiently explicit to avoid many of these evils.
On the propriety of the seventeenth article of this
chapter, relative to acts done by mistake or accident,
which would have been offences had they been intended,
there may be some doubts. There is none that it is in
apparent contradiction to the other general provision,
that the will must concur with the act in order to constitute an offence. Here there was both an illegal act
and the will to do one, but they did not concur.
The will was to do one illegal act; the execution was
that of another; therefore the contradiction still remains.
It is supposed, however, to be justified on two grounds;
one, that the want of ordinary care and attention supplies
the place of malice or design; the other, that there seems
to be a propriety in distinguishing between negligent
acts, occasioned by a design to do mischief, although not
that really done, and the same negligent act done without any intent whatever to injure. It will be observed
that article provides, that these provisions do not govern
the case of homicide, for which particular rules in this




THE CODE OF CRIMES AND PUNISHMENTS.     235
respect are provided under the proper head; and that
there are other limitations reducing the penalty when the
intent was to commit a misdemeanour only. Yet with
all this, I am bound to say, that although I think these
articles can practically produce no injustice, yet I wish I
could have put them in such a shape as to avoid an
apparent conflict with principle. They soften, however,
the rigour of the present law, which punishes all homicide
as murder, although there was no intent to kill or even to
injure, if it is done in the attempt to commit a felony.
The attempt to commit an offence, which fails from
some circumstance not dependent on the will of the
offender, is also made punishable, because every attempt,
although it fail of success, must create alarm, which, of
itself, is an injury, and the moral guilt of the offender is the
same as if he had succeeded. Moral guilt must be united
to injury in order to justify punishment; but as the injury
is not, in the case before us, as great as if the act had
been consummated, only half the punishment is awarded.
The fifth chapter relates to a repetition of offences, and
the increased punishment which it directs to be inflicted
on those who are not deterred by one punishment from
the commission of other crimes, seems so necessary and
reasonable, that it may pass without observation.
The sixth requires more consideration. It contains
general rules respecting principals, accomplices, and accessories, making some material changes; to the introduction of which, however, I have heard of no objection.
Its first operation is by defining distinctly who shall be
principals and accomplices, to avoid the continual repetition considered to be necessary now in all our penal
statutes, such as this in the laws against forgery-" Whoever shall forge or counterfeit, or cause or procure to be
for.qed or counterfeited, or shall willingly aid or assist in
the forging or counterfeiting," &c. One general provision,
applicable to all cases, will render in future, the use of all
these words unnecessary. The persons described by them
are principal offenders or accomplices; they both incur
the same punishment, because the guilt is the same,




236           INTRODUCTORY REPORT TO
and they cause the same injury; but the offences are
distinguished, and it is thought that the line between
them is so accurately marked that no mistake of consequence can occur. They are distinguished, because, although the guilt, the injury and the punishment are the
same, yet the act is different, and it is of great consequence, in penal law, not to confound in one denomination acts of a different nature. To counsel tile commission
of a crime, is certainly a very different act, requiring
different evidence from that of actually committing it.
The law and the denomination is also somewhat altered,
and it seems to me not without necessity. Our law, as it
now stands, has two species of accessories; one "before
the fact," the other "after the fact;" but having so little
resemblance either in their definition, in their guilt, or in
any other circumstance, that it was deemed expedient to
dissolve the connexion, and place accessories before the
fact in the class of accomplices, a denomination which
implies closer connexion with the guilt of the principal
offender than the accessory, who, as the name implies,
can only become criminal after the offence has been
counselled by the accomplice and executed by the principal. This last offence consists in aiding the offender
to escape from justice,-a fault that may have many
palliating circumstances, originating in the best feelings
of our nature. That of the accomplice can have none.
Therefore the punishment is very different; and as those
feelings are strongest in certain close connexions, formed
as well by society as nature, and which should not be
broken without evident necessity by the laws, it is
further provided, that certain near connexions, who
may follow up this impulse of nature by aiding another
in his endeavours to avoid the pain or disgrace of
punishment, should not incur this penalty.
In affixing punishments, we should compare the evil
of the offence with that necessarily caused by the punishment, and decide as the balance shall incline. In this
case the evil of the offence is now and then the escape of
an offender; a rare event, and not of much moment,




THE CODE OF CRIMES AND PUNISHMENTS.    237
because, by his escape from the punishment ordained by
the laws, he inflicts on himself that of banishment, which
answers two good ends: it deters almost as effectually
as the regular punishment; it rids you of the offender,
and prevents a repetition of his offence; and it fails only
in the chance of reformation which a good system might
promise; but which, under your present laws, could not
be hoped for. If the punishment is incurred, its evil is
the conflict between human laws, and in cases of near
ties of blood, those which God has implanted in our
hearts, in which the former will never prevail, but will
be despised for their inefficacy, or abhorred if they are
carried into execution. The same observation that was
made to show the propriety and convenience of establishing a general rule applying to accomplices in all
offences, applies also to accessories.  By the present
laws, as has been already observed, accessories after the
fact, in burglary, are subjected to a much heavier penalty
than those in murder; and owing to the application of
the term to two distinct offences, it is doubtful whether
a different and greater punishment is not also designated
in cases of larceny; for the term used in the law, which
directs whipping as the punishment for accessories in
that offence, does not distinguish whether those before or
after the fact are intended.
The whole of this first book, of which I have just
finished the very hasty review, is new. In no other code
that I have seen, has the legislator entered into a full
and frank explanation with the people; told them what
lie intended to do, and for what reason; marked out the
limits of the right course, and bade them observe whether
he exceeded them. In no other has he treated them, in
short, like reasonable beings, and told them to reflect as
well as obey. The whole of this book was presented
with the first report, published by your predecessors with
the stamp of their unanimous approbation, and has been
received, both in Europe and the United States, with the
most favourable judgment of the profession.
The subject of the second book of this code is offences




238            INTRODUCTORY REPORT TO
and punishments, and its first title treats of their general
nature and divisions. Its purpose is chiefly that of order
and arrangement, an object of more consequence than the
confused legislation that has generally prevailed would
lead us to suppose. Irregularity is not only an evil in
itself, by the loss of time and the errors which it necessarily occasions, but it leads to greater evils; to an
ignorance of the laws, because, if any difficulty is created
in finding them, it is not very frequently overcome. The
slightest obstacle is sufficient to make us give up the
search for that which does not, and which we flatter ourselves will not, immediately concern us; and there is no
obstacle more discouraging than the want of arrangement. That which is proposed is simple. The great
divisions are few, and their subdivisions grow naturally
out of them.  An offence is first defined to be an act or
omission which is forbidden by a positive law, under the
sanction of a penalty.  The terms of this definition
exclude all offences against unwritten law, all offences
growing out of a construction of any law, all contravention of any law which has not provided a penalty for
its breach. But it is not enough to know, generally,
what are offences.  They must, from their nature, be
different in degree, and affect different objects. These
two considerations call for two general divisions. By
the first, which marks the degree of offences, they are
divided into CRIMEs and MISDEMEANORS; the former designating those which may be punished by imprisonment
in the Penitentiary, or by a forfeiture of any civil or
political right; the latter, all other offences.  These
terms have been retained rather than adopted. In the
English law they have generally an analogous, although
somewhat indefinite, signification.  "Crime, properly
speaking," according to the language of Blackstone (a),
"being used to denote such offences as are of a deeper
dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of misdemeanors." While the terms were retained, it was
(a) Black. Com. 5.




THE CODE OF CRIMES AND PUNISHMENTS.    239
necessary that a precise idea should be affixed to them.
Where is the line to be drawn between offences of a
deeper dye and those of less consequence? How deep
the dye must be to give to an offence the colour of a
crime, or how little the consequence which is to sink its
importance into a misdemeanor, the learned commentator
does not inform us. Perjury is an offence of deeper dye
than an assault; yet, according to Christian (a), they are
both misdemeanors. Larceny is an offence of less consequence than murder; yet they are both crimes.  The
code gives a precise rule, drawn from the nature of the
punishment; one that produces no violent change in
the usual meaning of the words, but gives them that
precision which is necessary in every term employed in
a law.
The character drawn from the object against which the
offence is directed, gives us the second general division
into public and private offences. Here it is impossible
that the line of demarcation should be very distinct.
Offences which chiefly injure society at large, and come
under the first denomination, can rarely be committed
without also affecting private rights; nor, in general,
can any injury be offered to an individual that does not
directly, or in a remote degree, affect the well-being of
the community. But it ought to be distinctly understood,
that this division is entirely for the sake of order and
arrangement in framing the code, and that no mistake in
arranging a particular offence, under one or the other of
these heads, can be productive of the least injury. No
act can be prosecuted as a public or private offence; the
terms are unknown in the procedure, they do not affect
the form or the substance, and are merely labels affixed
to each offence, that they may be arranged in the proper
place, and each offence is defined without any relation to
its arrangement under one or the other of these denominations.  The same observation applies to the
different subdivisions; they give names to the different
(a) Note to Blackstone, p. 5.




240           INTRODUCTORY REPORT TO
titles under which the particular offences are found, but
no one can any more be indicted for an offence against the
sovereign power of the state, calling it by that name only,
than he could for a public offence by that designation;
the particular act forbidden by the law must be designated, because that alone constitutes the offence. To
prevent any error, all this is concisely expressed in the
text of the code.
The second chapter of this book has the nature and
general divisions of punishments for its object. Much of
what may be thought necessary comment on this, has been
anticipated in the preceding discussion on the infliction of
death, and for a still greater portion, we must refer to the
introductory report on the Code of Prison Discipline.
Here, it will be proper to remark on the general
features of the scale of punishments that are provided for
different offences.
There is an evident distinction in the nature of offences,
which demands a correspondent one in punishments.
Some show an habitual depravity, which requires long
discipline to amend; others are the effect of an occasional
disregard of the rights of others, which may be corrected
by the privation, pain, or disrepute of the punishment,
the remembrance of which may prevent repetition, and
the example deter from imitation. On this distinction
rests the system of punishments-Penitentiary imprisonment being designated for all offences of the first description, and the other penalties for the others. Of these
last, simple imprisonment in close custody is one which
is the most frequently employed, because it is applicable
to offences which, although they do not evince the degree
of depravity which characterises those punishable in the
penitentiary, yet require not only correction but restraint.
In these cases solitude is administered long enough to
give time for reflection, and to operate as a punishment,
but is not prolonged, as in penitentiary confinement, to
the period which is there necessary to destroy vicious
habits and acquire those of honest industry. It is the
connecting link between simple imprisonment, in which




THE CODE OF CRIMES AND PUNISHMENTS.    241
nothing but a temporary and slight correction is
thought necessary, and the strong remedy of solitude and
labour.
Liberty being the best enjoyment of a citizen, its
privation, in different degrees, was thought the fittest
punishment for faults which disturb social order, by
which only it can be preserved; and the good citizen
will value the greatest of all blessings the more, when he
sees that its enjoyment is inseparably attached to an
observance of the laws, and its loss generally the consequence of their breach.
But to some, the privation of personal liberty would
be a severer punishment than to others, for the same
offence, and for some infractions it would be too great for
the offence.  Recourse in these cases must, therefore, be
had to property, the next great source of human happiness; and its curtailment by fines, forms another grade in
the scale of penalties. The principles which have been
applied to adapt theni to different offences have been
already explained. It need only be added here, that in
some designated cases the necessary discretion of adopting one or the other, or both, of these Funishments,
simple imprisonment and fine, is vested in the judge,
within certain limits. Because, in all those cases there
must be a correction for the offence; and the judge only
can determine, from the circumstances of the party,
whether the forfeiture of property would operate as such
correction, or whether a temporary privation of liberty
ought not to be substituted or added.
It has been wisely ordered, that liberty and property,
although the principal sources of our enjoyment, should
lose the greatest part of their value, if not attended with
personal consideration, or the good opinion of those with
whom we are associated, and the equal enjoyment of all
those rights to which they are entitled. This social
feeling gives to the legislator another hold upon the
citizen in order to force an observance of the laws, by
threatening for their breach a privation of those rights,
Q




242           INTRODUCTORY REPORT TO
and of the confidence and consideration by which alone
they can be obtained. This forms the third and only
remaining class of punishments-privation of office,
of civil, of political rights, either for a time or perpetually.
This is all the penal machinery that is employed in the
code either for punishment, repression, example, reformation, or prevention.  The infliction of bodily pain by
mutilation or stripes, indelible stigmas, exposure in the
pillory, the stocks, or by public labour, are banished from
the code for reasons that are conclusive, and which have
once been presented to the legislature and received their
approbation. All of them are at war with every principle
on which this system is founded; and if either is retained, no good result can be expected from the adoption
of it. But there is a reason drawn from our state of
society so conclusive against the last, that it cannot be
resorted to without danger of the most serious kind.
There is a line of demarcation, which it would be rash in
the extreme to destroy even in punishments; and the
sight of a freeman performing the forced labour, or suffering under the stripes usually inflicted on the slave, must
give rise to ideas of the most insubordinate nature.  A
false economy only could suggest the repetition of an
experiment which has every where failed, every where
produced increase of misery, degradation and crime; and
here might be the cause of evils worse than all these
combined.
This part of the plan has, in a very flattering notice
taken of it in England, been considered as defective,
because it does not combine satisfaction to the party
injured by the offence, with the punishment inflicted by
public justice.
This idea has been a favourite one with many criminalists. It has been embodied in the French, and some
other codes, and once found a place in our laws. But,
however plausible the reasons for its adoption may appear, neither the principle on which the system  was




TIHE CODE OF CRIMES AND PUNISHMENTS.      243
founded, nor the experience of its effects, would permit
me to recommend it.
The distinction between penal and civil laws appears
to me to be this, that the first, from their very nature,
exclude the idea of private compensation, whereas it is
the sole object of the other in all cases of injury; if it
were not so, public justice would depend on the vindictive or interested passions for its execution, or might be
defeated by the apathy of the individual; and if the old
system of pecuniary satisfaction for crimes were not
renewed by the laws, it Vould be by stipulations between
the parties. This has been so well acknowledged, that,
in most laws, it has been made criminal for the injured
party to interfere between the society and the offender
against its laws; and after a prosecution has begun, it is
only in cases of small importance that the system of compromise is allowed to act.
The foundation of all penal law then is, that the society
has received an injury by the breach of its rules. All
violations of right are not brought within their purview;
those which are not, remain to be compensated by the
civil law. Over these it has an exclusive jurisdiction;
and although offences for breaches of penal law generally
are accompanied by, or consist of, a private injury, yet
the rights acquired to the society, and to the individual,
by this breach, are totally distinct.  The last can only
seek for compensation; the first for something else, which
may be, according to circumstances, either less or more.
In case of theft, the owner has a right to ask for restoration or compensation. The society has a right to inflict
punishment independent of that restoration. So far has
this been carried by the common law, that by one of its
extraordinary fictions, the private right is vmerged, as
they call it, in the felony, and the individual loses the
right to his property, as soon as it can be proved that it
was stolen from him; that is to say, when that is proven,
which shows conclusively that he has a title to it. This
distinction existing, then, in their very nature, between




244           INTRODUCTORY REPORT TO
civil and penal law, the question is, whether it is better
to combine the two operations, so as by the same suit
to give satisfaction and inflict punishment? This is a
question of mere convenience; and it is to be answered,
better perhaps, by experience than by reasoning. If it
is to be effected so as to preclude the party from his
civil suit, he must be represented in the prosecution.
This, in theory, would disturb the order of proceeding,
and by confounding the two jurisdictions, cause confusion
in our ideas of the nature of public justice, when we
saw it so much identified with private interest. It must
necessarily produce some irregularity.  The wish or the
interest of the public prosecutor might be to bring on
the trial when the private party was not ready to show
the extent of Lis loss, and there would be either delay or
injustice. It would lessen the dignity of the tribunals
of public justice, by making them  the arena in which
contests were carried on for mere private rights. The
attorney for the party in the civil side must necessarily
take a part in the conduct of the cause; and the course
he thought best might differ from that preferred by the
public prosecutor. This collision must produce disputes,
and disputes between those concerned in the administration of justice ought to be avoided. By not suffering
the person injured to be made a party, these inconveniences indeed may be avoided; but then you commit
the greater injustice of deciding on his interests without
hearing him.  These conclusions appear to me to be
confirmed by experience on both modes of procedure.
In France the person injured may make himself a party;
but as far as a foreigner can judge from the reports of
the cases, most of the inconveniences, which might be
anticipated, have seemed to follow. And in our state,
where the damages were directed to be inquired (a)
of by the jury that tried the cause, merely on
the prayer of the party, it was  found  so  incon(a) Act of 1805, section 39.




THE CODE OF CRIMES AND PUNISHMENTS,      245
venient in practice that the law was soon afterwards
repealed.
For these reasons it has been thought most consonant
to principle, as well as most convenient in practice, to
carry on the prosecution entirely unconnected with the
private suit; but, in all cases, to permit the party injured
to sue for his damages, and -whenever a claim for a fine
and those damages come in collision, to give a preference to the private claim.
The discussion of the nature and effects of different
punishments has been necessarily irregular.  Its anticipation could not be avoided in some degree, when we
considered the great characteristic of the code-the
abolition of the penalty of death; and a very great part
is, under an equal necessity, postponed, to be treated
of in the Introductory Report to the Code of Prison
Discipline.
I now proceed to the consideration of the important
titles which define the different offences, and assign to
each its appropriate punishment.
The first class contains those which affect the sovereign
power of the state, and first in that class stands the
crime of treason. This is defined by the constitution,
and therefore the code could do no more than repeat the
definition. But the same offence has the same definition
in the constitution of the United States, and in both
instruments is described as " levying war " and "adhering
to enemies;" but from the nature of the federal union, a
levy of war against one member of the union is a levy
of war against the whole; therefore it is concluded, that
treason against the state, being treason against the United
States, it is to be punished under their laws and in their
courts.
There are, however, other offences which affect the
sovereignty of the state, which do not amount to levying
war or adhering to its enemies. The first of these is
designated under the name of sedition. It is defined as
an attempt, by FORCE OF ARMS, to dismember the state,




246             INTRODUCTORY REPORT TO
or to subvert or change the constitution thereof. This is
one of the highest crimes that can be committed; and it
must be observed that here, and elsewhere in this report,
the degree of crime is measured by considering as well
the moral depravity which it exhibits as the injury it
occasions to the community. In this view it stands high
in the scale of offences, and the highest punishment (imprisonment for life in the penitentiary) is awarded to it.
A milder punishment is designated for him who shall
excite others to commit this crime by writing or verbally.
The employment of force is a necessary ingredient in
the first offence, and expressly exciting others to use force
in the second.  Neither of these offences are provided for
by our present laws (a).
Next in order, after offences against the sovereignty of
the state, are those which affect its legislative power.
The offences arranged under this title are —force directed
against either house of the general assembly to dissolve
their session, prevent their meeting, or direct their proceeding; threats of violence to a member to influence
his vote, or actual violence in consequence of his official
conduct; bribing or attempting to bribe, any such member, and the receipt of a bribe by him. These are forbidden under appropriate penalties, and with a proper
definition of each offence. This class of offences has not
yet attracted legislative attention, perhaps, because it was
thought that some of them might be sufficiently punished
or repressed in the exercise of the authority which is
supposed to be inherent in all similar bodies, to punish
contempts.  Without entering into that question which,
under our constitution, is not very easily decided, it may
be sufficient to say, that if that power extends beyond the
right of removing any immediate obstacle to the pro(a) The succeeding paragraph of the report,-relating to aiding and
promoting slave insurrections,- has been omitted; there being, happily,
no longer any necessity, in the United States, for legislative enactment
on this subject.




THE CODE OF CRIMES AND LTNT ljNII',EN'TS.  247
ceedings of either house, and of enforcing its constitutional orders, it yet has not the power necessary for the
occasion, inasmuch as the warmest partisans for the doctrine of contempts, do not contend, that any punishment
the house can inflict, can exceed imprisonment during the
session.  It seems, therefore, proper, that an adequate
penalty should be provided for the high offences mentioned in this title; and it is moreover consistent with
the principles of our government, that every offence
should be defined, and that the right of trial by jury,
secured by the constitution, should be preserved inviolate.
These are effected by the articles of this title, at the same
time that whatever privilege is constitutionally vested in
either house, remains unimpaired. Giving, offering and
accepting a bribe are among the offences enumerated, and
the punishment here assigned to it, is a suspension of
political rights for five years, or fine equal to four times
the amount of the bribe, and penitentiary imprisonment
from six to twelve months for the person offering, and
forfeiture of political rights, and fine equal to five times
the amount of the bribe, for him who accepts it. The
difference in the punishment was calculated to suit the
probable situation of the several offenders, the tempter
being treated more severely by the imprisonment, than
him who yields to it; and the forfeiture of political
rights is denounced, in this case, instead of a suspension;
because, he who has once yielded to such a temptation,
ought never again to be trusted with political power.
Where the value of the bribe offered or accepted cannot
be discovered, a standard rule is given in all similar cases
for the measure of the fine.
Under the head of offences against the executive power,
we have several highly injurious and immoral acts which
are not now punishable by any of our statutes. Bribery
is confined by the law of 181S, the only act we have on
the subject, to bribing or offering to bribe, a "judge or
other person concerned in the administration of justice,"
leaving the accepting a bribe by such judge or person




248             INTRODUCTORY REPORT TO
so employed, and the giving, offering, or receiving a
bribe by any other totally unprovided for. By this
chapter, it is extended to all executive officers, and the
following offences, hitherto unnoticed, are added: doing
official acts before the oaths and the security required by
law are taken and furnished; forcible opposition to official
acts; corruptly agreeing to make appointments, or do any
other official act in consideration of an advantage (a) not
allowed by law, and not being an emrolument; extortion,
which is fully defined; receiving an emolument not
allowed, or greater than is allowed by law for doing
official acts; committing any act which is an offence
under colour of office; negligent performance of official
acts, by which injury is received; all these are made
offences, and punished by penalties which are supposed
to be appropriate and commensurate to them; and
articles are added extending these penalties to deputies,
to persons exercising the office, although there may be
an informality in their appointments; and making principals answerable for the acts of the deputy when they
are done with his consent. The officers of corporations
are also included, as well as those exercising pr'ivate ofices.
This is an important title, and comprehends several
offences, a few only of which will come within the purview of the existing statutes, under the loose description
of misdemeanor in office.
First in rank under the head of offences affecting the
judiciary power, are those relating to judges and juries,
and of them the most important are those which may be
committed by these functionaries themselves. The importance of these duties, the dreadful consequences of
neglect or corruption in the performance of them, has
attached, in all countries, a sanctity to the office of judge,
which makes that a crime with him, which would be a
venial fault in another. In all ages, therefore, while the
(a) For the understanding of this article, recourse must be had to the
definitions of the words in italics.




THE CODE OF CRIMES AND PUNISHMENTS.     249
public veneration has been readily yielded to the upright
magistrate, the unjust judge has been the universal object
of detestation and contempt. The highest rewards have
not been deemed too great for his merits, nor the most
cruel punishments too severe for his faults.  Heaven
itself must have inspired our British ancestors with the
idea of separating the decision of law from that of fact;
for nothing could, with so much effect, lessen the danger
of corruption. The jury, unapproachable by seduction,
because not called into existence in time for it to operate
upon them; the judge, unable for the most part to decide
without their intervention.  But although this distribution leaves to neither the absolute power over the life or
fortune or reputation that is put in the law's jeopardyyet each of them have sufficient to make it necessary that
their integrity should be protected from temptation, and
their sense of duty stimulated by the law. There are
some who think, that with respect to the judicial office,
it would be degraded by enactments which suppose the
possibility of its high functionaries being influenced by
such inducements as would bias other men. Confidence,
they argue, produces integrity, suspicion provokes to
guilt; leave the high characters of your judges to be
sustained by their own sense of honour, and do not fetter
them by any of the degrading restrictions and penalties,
that you devise to bind other officers.
These have been the remarks suggested by men whose
opinions deserve attention, on the chapter now under
consideration; and they were repeated so earnestly that
I yielded more, I think, to respect than to conviction,
and agreed to suppress the third article of this section,
which prohibits a judge from receiving gifts of any
assignable value, unless by will, or from a near relation.
The reasons urged against it have been stated.  Those
which induced me, at first, to introduce the clause shall
be given, that the general assembly may judge of the
propriety of reinstating the article which they will find
in the first printed copies.




250            INTRODUCTORY REPORT TO
I acknowledge the force of the maxim, that confidence
in generous minds begets a disposition to merit it; but
I deny the propriety of its general application.  The
penalties of law are founded on a supposition, that,
without them, its precepts would not be fulfilled. Could
we count on that generous disposition which the objection supposes, there would be no need of any sanction to
our laws. The legislator need only point out his will
and express his confidence in the integrity of those to
whom it was directed, and the work of legislation would
be done. But the argument is not pressed so far; it is
acknowledged that penalties are necessary to insure
obedience in ordinary cases; but, it is said, that judges
form an honourable exception; restrain all the rest of
the world by the fear of punishment-trust to the integrity of the judge for the performance of his duty.
What, will you impose no restraint, no impeachment
for corruption, no indictment for bribery? Yes, these
we will allow  but he must not be restrained from
accepting presents as the testimonials of friendship,
which are no more than common courtesies of life.
Now, if you can think it necessary to guard against the
gross corruption of direct bribery, why will you permit
a practice which is the most common mode of effecting
it? Not to speak of their being made the vehicle
for the more glaring crimes, their favourable effect on
the mind of man is evident to any one who has the
slightest knowledge of the world. Received as tokens
of kindness at first, their slight value excites no suspicion; they are multiplied; their value is increased,
and the obligation goes on augmenting until it can only
be discharged by a favourable decree. But the practice
ought to be forbidden, if it should have no other effect
than that of exciting suspicion. If the judge has been
in the habit of receiving presents of game or liquors
from a suitor who gains his cause, the loser will not fail
to attribute it to the flavour of the venison or tie exquisite taste of the wine. Nor is the inhibition either




THE CODE OF CRIMES AND PUNISHMENTS.       251
new, or considered as derogatory to officers of the highest
trust. It is a constitutional provision that no one, holding
an office of trust or profit under the United States, shall
accept any presents from a foreign power.  If this does
not degrade the ambassador, why should a similar one
degrade the judge?  Besides, be consistent.  You have
two sets of judges. If those who determine the fact,
when they are exhausted with hunger and fatigue, receive
the slightest refreshment from one of -the parties, you
dishonour them by setting aside their verdict, as being
corruptly procured, and often punish them  for misconduct; and yet you think it degrading to the other class
of judges, to prevent them receiving gifts of much greater
value.
The other acts that are made punishable by this section are described with precision, so as neither to subject the officer to vexatious prosecutions, nor to suffer any
judicial oppression or malfeasance to escape the animadversion of the law. This was the more necessary, because,
by our statutes, although it is a crime to offer or give a
bribe to a judge, there is no penalty denounced against
him  for accepting it(a), unless it be under the vague
denomination of misdemeanor (b); to understand which
we have not even the resource of a reference to the
English law, for the statute which creates the offence
was passed since the year 1805, and contains no reference to that law; and if we had, the matter would
not much be mended, as we have seen in former parts of
this report (c). When a word is used in legislation, that is
neither technical nor explained in the law, it must of course
be understood according to the signification it has in
common parlance; but there can be no technical meaning
affixed to this word, because there is no body of laws to
which we are or can be referred for its explanation. We
have no common law, and the statute refers to none,
therefore it must have the same meaning here that it
(a) Act of 19th March 1818, sect. 5.
(b) Act of 7th Jnne 1806, sect. 5.  (c) Ante, p. 138.




252            INTRODUCTORY REPORT TO
would in common conversation.  What is that? Both
etymology and usage give the answer; any misconduct
whatever. A misdemeanour in office, then, is any demeanour that is contrary to official duty. Our present
law, therefore, is infinitely more strict than that which is
offered as a substitute; without defining any particular
misconduct, by a sweeping clause it makes the minutest
inattention punishable by fine, imprisonment, loss of
office, and incapacity ever to hold one. A rude or hasty
word to an advocate, a suitor, or a witness, is misconduct, and so is corruption-both come within the meaning
which etymology gives to misdcmeanour.  Should a
judge do that for which he would fine a juror, come too
late into court-should he yawn or doze on his bench
during the sixth hour of a dull speech, the affronted
orator would tax him with misconduct, and he might
be vexed, although a jury probably might excuse him
for indulging so natural a propensity; more especially
if the speaker were one of those, like Virgil's priest"Spargere qui somnos, manu, cantuque, solebat."
Instead, then, of taxing the provisions of this chapter
with improper hostility to the judicial character, and
with imposing too great restraint upon the exercise of
its functions, it ought to be considered, as it truly is,
a relief from the danger of an ambiguous law, that
creates a penalty which might, without departing from
the words of the statute, be made by malice or ignorance
to affect the fortune, liberty, and reputation of a respectable magistrate, for a trifling misdemeanor.  In this
section of the code, on the contrary, everything is defined-nothing made punishable but what is injurious,
and the penalties are suited to the offence.  In the
first copy there was a material omission, by which a
judge was inhibited from advising a suit, or giving
counsel relative to its management, without making the
necessary exception of cases of near relations, or any
other in which he could not sit as a judge. This error is
corrected.




THE CODE OF CRIMES AND PUNISHMENTS.    253
By this section the necessary penalties are imposed on
such misconduct of jurors as, by our present law, is
either not punishable at all, or is so in a way that
precludes the person accused from the benefit of a trial
by jury, and the other advantages given by law in other
prosecutions.
As, by the section thus reviewed, judges and jurors
are restrained by penalties from acts contrary to their
duty, so in the next they are protected from all attempts
by bribery, violence, or improper persuasion, to seduce
or force them from its performance; and an article gives
a precise rule on a subject left very much at discretion
by our present practice. I mean the publication of proceedings in court during the pendency of a trial. It is
believed, that the provision will secure the dignity of
the court, the rights of the parties, and the liberty of the
press.
The second chapter of this title is intended to prevent
the bribery of ministerial officers of justice, and forcible
opposition to them in the execution of their duties. The
laws which embrace those offences, did not seem to be
sufficiently descriptive of the acts which they forbid, and
are totally silent as to a number of circumstances which
ought to be explained. What are official acts; what
forms the judicial orders must be clothed with to make
opposition to them an offence; in what cases and to what
degree opposition is lawful; what degree of opposition
incurs the penalty; what ought to be the conduct of the
officer in the performance of his duty, so as to entitle him
to the protection of the law, or to make him forfeit it;
are deficiencies in the present law, which are supplied by
that which is offered.
Connected with this is the chapter on Rescue, to which
nearly the same observations apply, with this additional
reason for the amendment of the present law-that
although it punishes the rescue of a person committed
for, or convicted of, any other than a capital offence, yet
a rescue for this last offence is only made punishable
where the person rescued is indicted or convicted; but




254            INTRODUCTORY REPORT TO
leaves the case of his rescue after commitment, but before
he is indicted, wholly unprovided for (a). This error is
corrected, and other provisions added, to make the law
explicit and equal in its operation.  In order to effect
this latter object, the punishment, with some modifications to adapt it to particular cases, is one-half of that to
which the party rescued would have been liable had he
been convicted of the offence for which he was in custody,
and a certain fine and imprisonment if he were confined
on a civil suit.
Escape and breach of prison, are offences analogous to
that of rescue. Adopting the principle of the English
law, this offence, if committed without violence, is
punished by a light fine and imprisonment. By our
present law it is not provided against at all. If committed with violence, it incurs the punishment, and comes
under the description of a forcible opposition to the
officers of justice. If the escape is aided, or voluntarily
permitted, by the person having charge of the accused,
he incurs one half the punishment which might have been
inflicted for the offence with which the accused was
charged. The English law makes the punishment of the
officer depend, in a great measure, on the conviction of
the person escaping; for if such conviction take place, he
suffers the same punishment with the delinquent; if he
be acquitted or not taken, the keeper only suffers fine
and imprisonment as for a misdemeanor. This rule, it
was thought, would, in many cases, defeat the ends ot
justice. The risk of fine and imprisonment was not
thought sufficient counterpoise to the bribes that might
be offered by wealthy delinquents.  The punishment
assigned to this offence by the code, bears a proportion to
the crime for which the person escaping was committed,
because the injury to the community is greater in proportion to the magnitude of crime, and the temptation
offered always increases in the same proportion, and it is
incurred whether the party originally accused be acquitted
(a) Act 4th May 1805, section 36, as given in Martin's Digest, 2d
vol. 240.




TIE CODE OF CRIMES AND PUNISHMENTS.     255
or be never retaken; neither of which circumstances can
lessen the guilt of the keeper. And allowing either to
operate in his favour, would evidently make it his interest
that justice should be avoided, either by effectual flight,
or by the suppression of testimony necessary for conviction. If the escape be voluntary, the punishment is one
half of that incurred by the crime charged on the prisoner;
if negligent only, it is one quarter.
It is somewhat singular that an offence of this importance, so deeply affecting the administration of justice,
should not be provided against by our laws, otherwise
than under the loose head of misdemeanor in office,
which can only apply to civil officers; but if the crime be
committed by a sentinel set to guard the prisoner, or by
a person having no office at all, it is unprovided against.
To break or attempt to break prison by the prisoner,
legally imprisoned, when accompanied by violence, incurs
the punishment of from six months in close custody to
two years. Breach of prison for the purpose of rescuing
another, is punishable by'penitentiary imprisonment from
two to five years; and this does not depend on the
legality of the imprisonment, as it does in the case of the
prisoner himself. A lesser punishment is denounced
against furnishing a prisoner with the means of making
his escape, whether it be effected or not.
The seventh chapter of this title adapts, to the officers
of justice, all offences described in the chapters relating to
offences committed by executive officers.
The important duties attached to the profession of the
law, have, in all nations where the law was a science,
given its members the greatest influence, and sometimes
made them obnoxious to the most unworthy suspicions.
Deemed worthy to be trusted with the defence of the
property, reputation, liberty and life of others; they were
yet subjected to have their own reputation blasted, their
only means of subsistence forfeited, and, if not their lives,
all that makes life desirable taken from them, for offences
of all others the worst defined, by a summary process, in
which the party injured was the prosecutor and the judge,




256            INTRODUCTORY REPORT TO
and his sentence was without appeal. There was, indeed,
a corrective in the publicity of judicial proceedings, and
the consequent force of public opinion, which prevented
any great abuse of this dreadful power; but this was too
uncertain a tenure by which to hold reputation or property. Public opinion, in its sound state, might protect,
but when disordered by the madness of party or prejudice,
would but stimulate oppression. Such a state of things
was so little in unison with the spirit of our institutions,
and indeed with the letter of our constitution, that it at
length attracted legislative attention; and the members
of an honourable profession were, by a law passed in the
year 1823, placed on a footing with other citizens. The
benefit of a trial by jury was in all cases, except that of
contempts in open court, extended to them; and sonme
definition was given to certain offences which they were
supposed to be most liable to commit. This law I have
made the basis of the articles of the ninth chapter of the
title we have now under review, but the list of offences
is extended; they are more accurately defined; and
while the object has been to protect the honourable
members of the profession, a proper increase of punishment has been denounced against those who may disgrace
it by their cupidity or chicane.
A short chapter embraces the case of those who may
falsely personate an officer of justice, or a suitor, or bail,
or any other person. This was provided for by our
statute, and also the case of a false personification for
putting in bail or confessing a judgment.
l-erjury is one of the offences which not only affects
the administration of justice, but all the other operations
of government in its various departments.  By the
English law this crime could only be committed by false
swearing in some judicial proceeding. Our statute of
1805 wisely extends it to all cases in which depositions
or affidavits are taken pursuant to the laws of the territory.  Doubts might arise, under this statute, whether
affidavits or depositions, taken under laws made subsequent to that statute, were included in it, and, also,




THE CODE OF CRIMES AND PUNISHRMENTS.     257
whether the affidavits and depositions intended were not
exclusively such as were taken as evidence in a judicial
proceeding. The code, by covering a broader ground,
puts an end to those doubts. It defines the crime to be
"a falsehood asserted verbally or in writing, deliberately
and wilfully, relating to something present or past, under
the sanction of an oath, or such other affirmation as is or
may be by law made equivalent to an oath, legally
administered under circumstances in which an oath or
affirmation is required by law, or is necessary for the
prosecution or defence of private right, or for the ends of
public justice." This definition includes all testimony
and judicial oaths whatsoever, whether oral or written;
and it further extends the provisions of our statute so
as clearly to embrace all other oaths which are required
by law to attest the truth of any fact, such as declarations under the quarantine laws, and the like. In all of
which cases the moral evil and the injury to the community may be as great as if the perjury were committed in
a court of justice; yet a deliberate falsehood, asserted
under oath, according to our present laws, would not be
punishable at all, except it were connected with a judicial
proceeding; unless special provision to that effect should
be made in the law requiring the oath, which is frequently neglected where it is necessary, and for want of
a general provision, such as the code contains, unnecessarily increases the length of our laws where it is not
neglected.  The definition excludes the breach of promissory oaths, such as oaths of office, from the guilt of
perjury; because there the offence is not one that exists
in taking the oath, which may be done with the sincerest
intentions of keeping it, but in some act done subsequently, which may be inconsistent with it. If that act
be sufficiently injurious to call for the animadversion of
the law, it will be found to have been provided against
under its proper head; if it be not, it is contrary to the
principle of this code to punish it, however unconscientious it may be.  For we cannot too often repeat, that
the endeavour has been to place no acts in the rank of
R




25'8          INTRODUCTORY REPORT TO
offences, but such as were injurious, and were done either
with a design to injure, or with an inattention to the
rights of others, that is nearly as reprehensible.
This chapter punishes, under the appellation of false
swearing, all deliberate falsehoods, asserted in voluntary
affidavits, not taken in the course of judicial proceeding,
nor required by law, but yet made the engines of detraction and other mischiefs; for which it is deplored by
writers on English law that it affords no remedy. The
punishment of this last offence is, of course, lighter than
the former; but the prevalence of the evil seemed to
require that it should be repressed by a penalty, and the
nature of the crime suggested the further provision that
a conviction for this offence might be given in evidence
against the credit of the party, in any case in which he
might be sworn as a witness.
On this head of perjury, too close an adherence to the
English law led me to insert an article, which further
reflection has induced me to wish may be erased. It is
the second of the chapter, which provides for a case that
will probably never happen, and can cause no injury if it
should —the case of a witness swearing to a fact that is
true, although at the time he believes it to be false.
The suborner to perjury is made liable to the same
punishment with the principal offender. In this the code
agrees with the present law; and it adopts the same
measure with respect to false swearing. It also adds
a lighter penalty on him who makes an ineffectual
attempt to procure the commission of either of these
offences.
The provisions of the eleventh chapter have excited
much attention, and given rise to some severe strictures;
on the work, as tending to deprive courts of justice of
their only means of self-defence; on the reporter, as
being actuated by a spirit of hostility to the judiciary.
The general assembly, I know, will listen without prejudice to my argument on the first charge, and I hope
will excuse me if I add a word or two on the second.
The power of punishing for contempts, in the extent




THE CODE OF CRIMES AND PUNISHMENTS.    259
to which it has been carried, it is believed has never
been justified by the plea of necessity. Its repugnance
to all the fundamental principles which secure private
rights in the administration of justice is so apparent, that
no other argument can possibly be used. The offence is
the showing a contempt for the court. Of all the words
in the language, this is, perhaps, the most indefinite.
Everything that can, by any process of reasoning, be
considered as a disrespect to the court, is a contempt.
Blackstone enumerates seven different species of consequential, as contradistinguished from direct contempts;
each of them comprehending a countless number of different acts as distinct from each other in their nature, as
all of them are from contempt, according to its strict definition.  For instance, the second division of consequential contempts comprehends those committed by
sheriffs, bailiffs, and other officers of the court, by
deceiving the parties, by acts of oppression, by culpable
neglect of duty, &c. In short, there is nothing —from
an indecorous gesture or a rude, hasty word, up to the
most violent opposition to legal authority-that cannot
be brought within the purview of the law of conteinpts.
Printing a false account of the proceedings of a court, or
a true account while the suit is pending, without permission, as well as speaking or writing contemptuously of
the court; treating a piece of paper, under its seal, with
disrespect; and, to sum up all in the words of the apologist of the law of England, anything that shows a gross
want of regard and respect.
Now I put it to those who contend that this power
ought to be vested in courts, I put it to them to say,
what is the conduct that will secure a man against its
exercise in the hands of a vain or vindictive judge? "A
want of regard and respect!" Regard and respect cannot
be commanded but by moral conduct, and not always by
that. The most correct conduct will not always secure
it; the feeling is involuntary, and cannot be punished.
But you must not show that you want it; it is the
demonstration that is culpable. But how shall I avoid




2G60          INTRODUCTORY REPORT TO
showing it?  When, in my own defence, or in. the
prosecution of my right, I differ from the judge, and
show that the opinion he has given is absurd, certainly
I treat him with very little regard or respect. I can feel
none for a man who, by some miserable sophistry, deprives me of my right; and if I expose it to the world,
I show my want of respect; but a want of respect is a
contempt.  I am, therefore, liable to be punished for
defending my right in the only way that justice requires
it should be defended. Oh! say the advocates of this
tyrannical power, you must distinguish; attack the argument of the judge as much as you please, but say
nothing disrespectful of the court. But what jesuit will
teach me how I may tell a court that it has decided
against the plainest principles of law, without showing
that I think they have been ignorant, careless, prejudiced, or worse? When I know that, by reason of either
of these faults, they are about to deprive me of my fortune or my life, can I feel regard or respect? When I
state the reasons by which I demonstrate it, do I notclothe it in what language I will-do I not make that
want of regard manifest? And is not this, according to
the very terms used by the author I have quoted, a contempt? It is amusing to observe the expedients which
have been resorted to, to reconcile things that are irreconcilable; great respect for the judge and contempt for
his opinion; professions of the highest veneration and
regard, coupled with allegations that show the speaker can
feel neither; introducing, among other evils, a fawning,
hypocritical cant, equally unworthy of the suitors and the
judges.
An offence so ill defined, so liable to be imputed,
embracing such a variety of dissimilar acts, would be
dangerous and oppressive in the extreme, were it to be
prosecuted according to the ordinary forms of law; but all
these are disregarded; none of them are preserved, and
the plainest letter of the constitution is violated in its
most sacred provisions. It declares that, "in all criminal
prosecutions, the accused shall have the right of meeting




irHE CODE OF CRIMES AND PUNISHMENTS.              261
the witnesses face to face, nor shall he be compelled to
give evidence against himself." Yet process of attachment for contempt issues on an affidavit, and when thle
defendant is brought in, it is not to meet his accuser
face to face, but, in direct defiance of the constitution, to
"give evidence against himself," if he be guilty, under
the penalty of being punished for a "high (a) and re(a) 4 Bi. 287. The mode of proceeding by attachment and interrogatories is adopted in our courts —  Martin, Territory v. Thurry-Same
v. Nugent.  In 10 Mart. 123, De Armas's case, the court punished for
an indecorous expression by suspension for a year; and this case expressly
supports the argument I have used in the first part of this report, that
the Spanish penal laws are unrepealed, unless they are inconsistent with
some statute of the state. In this case, several points are decided. First,
that the law of Spain giving authority to the court, when a lawyer
is " arrogant... or is of ill fame, or is tedious, contradictory, or speaks
too mutch, or any other like crime," is in force, for it is expressly relied 
on as justifying the court for suspending the defendant from practice.
Secondly, it is decided that this law is a penal law. Judge Martin says,
" the Spanish law, which thus forbids the judge to suffer any contempt
of his authority, is a penal one, for it cannot be carried into effect without
inflicting some penalty." Thirdly, the full ground I have supposed the
doctrine of contempt to occupy, is relied upon as law, for the same judge
adds, "and a lawyer guilty towards the court of any contemptuous action,
ecxpression, or gesture," may be instantly punished, by suspension at least,
Fourthly, the important point I argued for, that the laws of Spain are
not repealed, unless there is a perfect incongruity or an absolute repeal,
is declared to be law, supported by at least a dozen authorities. Nay,
this case goes further than I thought it necessary to go, and preserves the
Spanish law, even where the legislature have made a statute on the same
subject; for the defendant was punished for a contempt by suspension
for a year, although the legislature had declared that contempts should
be punished by fine and imprisonment, because, says the same judge t,
" there are no negative words, and the substance of the new act may well
stand with that of the Partidas: the two provisions are not contradictory,
and may fairly exist together." And he strengthens this reasoning by
the authority of the superior court, 1 Mart. 129. Judge Matthew's
opinion coincided with that of the other judge ~; and he states the rules
of repeal in so clear and methodical a manner, that if the book containing
this report had then been within my reach, I should have adopted his
reasoning instead of my own when 1 treated of this part of the subject;
but although I recollected the case, I did not choose to quote it from
memory.
* 10 Martin's Rep. 164.        t Ibid. 169.        + lb. 172.




262           TITRODUCTORY REPORT TO
peated contempt." The punishment, by our statutes, is
limited to fine of fifty dollars and ten days' imprisonment; but from the case cited in the note, it appears
that the Spanish laws are still in force, unless there is an
express repeal or incongruity between them and our
statutes.  With respect to  counsellors and attorneys,
there is such express repeal, but in no other cases (a).
Now, in thle variety of offences created by the Spanish
statutes, many relate to the courts and judges, and to
their officers and process; all these, by the sweeping
definition of contempts, may be properly considered as
such; and as the Spanish law has been decided not to
be repealed by our law of contempts, the aggravated
punishment may, in those cases, be inflicted as it was in
the one referred to in the note. But without this, if the
punishment is confined to that directed by our statuteis that nothing? Is it nothing to be deprived of liberty
for ten days, without conviction —without jury'? Is it
nothing to be forced to give evidence against yourself'?
The magnitude of the punishment is comparatively of
little moment. It is the principle that is dangerous. A
friee citizen ought never to hold his liberty, even for an
hour, or the slightest portion of his property, at the will
of any magistrate. But those I have noticed are not
the worst features of this species of punishment. Vague
and uncertain as is the definition of the offence, yet if
impartial persons were appointed to decide, whether any
given word, look, or gesture was contemptuous, there
would be some security (a slight one, I grant) against
oppression; but, as if it Were to make this example one
in which every principle of correct procedure was to be
violated, the person offended is constituted the only judge
-the judge without appeal; and lest his resentment
should have time to cool, he is armed with the power of
summary process-and if he want evidence, he may force
the defendant to produce it. Let it not be said, as it
sometimes is, that this is an advantage; that the defend(0) Act 27th March 1823.




THE CODE OF CRIMES AND PUNISHMENTS.        263
ant may, by his answers to the interrogatories, exonerate
himself. Not so. In the case of contemptuous words
(and I see no reason why it should not extend to acts
also), if he admit the speaking or the writing, the court
have the right to judge of the intent as manifested by the
words; and although the party should deny any disrespectful intent in the most unequivocal terms, the court
may declare that the answer is false, and proceed to
impose the punishment (a); and this power is given, too,
in the very cases where it ought to be withheld. If it
were confined to cases of actual injury, not only would
the offence be more susceptible of proof-not only would
there be a corrective in public opinion, which could be
fixed upon the question, whether the injurious act had
been committed or not; but the passions even of the
party injured, if he were constituted the judge, would be
less liable to be roused. It is a trite, and therefore, probably, a true observation, that men forgive injuries much
sooner than insults. Judges (although by vesting them
with this power we treat them as angels) are men; their
passions will be more readily roused by real or fancied
insults than they would be by injuries, and nothing can be
more at war with justice than passion.  Another evilthere is no end to them-is, that from  the nature of the
crime, its existence must depend on the temper of the
judge who happens to preside. Words which a man of a
cool and considerate disposition would pass over without
notice, might trouble the serenity of another more sus.
ceptible in his feeling or irritable by his nature. There
is no measure for the offence, but the ever variable one
of the human mind.  The judge carries the standard in
his own breast; and if, by close observation, you have
discovered its probable dimensions, your work is but
begun, for every succeeding magistrate has his own scale
(a) 1 Mart., Nugent's case. It is true, the words used there, could
not be reconciled to the declaration that no disrespect was intended; but
if this case was correctly decided (and there is no reason to doubt it), the
court have the right, in all cases, to judge between the answer to the
interrogatories and the words used.




264            iNTRODUCTORY REPORT TO
for the weight of an offence, his own measure for the
extent of the punishment.
I do but waste the time of the honourable body I
address, in showing the dangerous nature of this undefined power; for its apologists cannot hide its hideous
features. Blackstone acknowledges that it "is not agreeable to the genius of the common law in any other instance;"
but he does not attempt to justify it even from necessity,
and contents himself with showing that it is of "high
antiquity, and by immemorial usage has become the law
of the land;" that is to say, that it is common law, and as
that is the perfection of human reason, that it must be
good. But here, where we are not satisfied in general
with this reasoning, as summary as the process it is used
to defend-here, and on this occasion, when we are inquiring, not what is, but what ought to be law-here
some other argument must be used to show that we ought
to adopt or continue this oppressive absurdity: and that
argument is found in a single word —necessity. In the
present improved state of human intellect, people do not
so readily submit to the force of this word as they formerly did. They inquire-they investigate, and in more
instances than one, the result has been, that attributes
before deemed necessary for the exercise of legal power,
were found to be only engines for its abuse. Not one of
the oppressive prerogatives of which the crown has been
successively stripped, in England, but was in its day,
defended on the plea of necessity. Not one of the attempts to destroy them, but was deemed a hazardous
innovation. Let us examine whether this power does not
partake of the same nature.
A  recurrence to the great principle of self-defence,
which we have in a former part of this report developed,
will serve to show with some certainty, as it is thought,
to what extent this power is necessary or proper. Society
has, if our reasoning be correct, the right of self-defence.
Every department created by that society for its government-every individual composing that society, has the
same right, defined to mean the right of defending exist



THE CODE OF CRIMES AND PUNISHMENTS.       265
ence, and the operations necessary to existence.  But
society, as the superintending power, must have, for the
purpose of securing these and all other rights belonging
to departments and to individuals, the further power to
punish. Society alone has this right. Try the law of
contempts by this simple rule.  Courts of law are the
organs of one of the departments of society, and, to avoid
confusion, we will select for our example courts of exclusively civil jurisdiction; such courts have the right to
defend their own existence, and to repress every thing
that interferes immediately with the exercise of their
legal powers.  They have this right, as a legitimate part
of society, by the principles of natural law; and if it be
curtailed by any constitutional provision, it is a great defect, because self-preservation very frequently requires
immediate efforts that would make an application to any
other power ineffectual.  Every thing, then, that is necessary and proper to defend its existence, and secure the
free performance of its functions, can with no greater
propriety be denied to a court than there would be in
forbidding an individual to defend his life against the
attack of an assassin.  But neither the court nor the
individual have necessarily the right to punish, either
after the attempt has been repelled or after it has been
carried into execution. That is the duty and the right
exclusively vested in the whole society. An individual
has the right to defend himself against an attack upon
his liberty or life; but after he has successfully resisted
it, he has no right to punish; yet liberty and life are
considered as sufficiently protected by this limited
power.  Courts of justice have the same right to repel
all attempts to interrupt the performance of their
functions. They are incorporeal beings, whose existence
is only in the performance of their functions-that is
their life-that is their liberty.  They are, or ought to
be, armed with every power necessary to defend them.
Noise, interruptions, violence of every kind, must be repressed; obedience to all lawful orders which are necessary for the performance of their functions, must be




2 6           INTRODUCTORY REPORT TO
enforced. Thus far the law of self-defence goes, but no
further.  Is the violence over-has the interruption
ceased —is the intruder removed-has the order, which
was disobeyed, been complied with?-here the power of
the incorporeal being, as well as that of the individual in
the analogous case, ceases, and the duty of the sovereign
power begins. That alone must punish-that alone can
define offences and fix the penalty for committing them.
An infringement of the legal rights of a court of justice
is an offence, and that government is radically defective
which places the power to punish it in the hands of the
offended party.  Here, then, we find the limit of that
necessity, which is so much insisted on and so little understood. There is a necessity that courts should have the
power of removing interruptions to their proceedings,
because, unless they can perform their functions they
cannot exist, but there is none that they should have the
power to punish those interruptions; the laws must do
that, by the instrumentality of the courts, but in the form
prescribed by law.
If the argument has been as clearly expressed as its
force is felt, it must be convincing to show —that all
those offences distinguished by the name of contempts
ought to be banished from our penal law, which they
disfigure by the grossest departure from principle; that
courts ought to be empowered to remove all obstructions
to their proceedings; that all such acts, as well as those
tending to interrupt the course of judicial proceeding,
to taint its purity, or even to bring it into disrepute,
should be punished only by the due course of law; and
that proper punishments, inflicted by the regular operation of law, will deter from these acts much more effectually than the irregular agency of the offended party,
who sometimes, from delicacy, will abstain from enforcing
the penalty of the law-sometimes, from the indulgence
of passion, will exceed it.
It is on these principles that this part of the code has
been framed. It vests ample powers of repression in the
court.  They may remove every interruption to their




THE CODE OF CRIMES AND PUNISHMIENTS.      ~67
proceedings; they may enforce prompt obedience to
their orders; they may, if simple removal is not found
sufficient, restrain by imprisonment; and, after this, a
regular trial and punishment follows for the offence.
Here is no angry altercation.  All is done with the
composure necessary to the dignity of justice.  The
judge is not the accuser; the accuser is not the judge.
All that class of offences, too, which consist in insulting
expressions, are provided for. But here, again, an impartial jury decide, as well on the nature of the words,
as on the intent with which they were used. The judge
cannot improperly indulge his feelings, or restrain them,
to the injury of public justice; and the offender against
laws for preserving the order and dignity of the judiciary
is liable to the same penalties, entitled to the same rights,
and judged by the same laws, that apply to other offenders.
This chapter, then, far from derogating from the
respect due to the judiciary, is calculated, in all its
provisions, to enforce it; and the insinuation, that its
author could be actuated by any hostility to that departmnent, is not only groundless, but absurd. If, indeed, it
is hostility to a department of government to desire that
none but its proper powers should be vested in it by law,
or, still less, should be exercised without law; if it be
hostility to the judiciary to divest them of the odious
accumulation of the offices of judge, party, legislator and
accuser in the same person; to protect their functions in
their exercise, and punish all attempts to interrupt them;
then is this chapter dictated by a spirit of the most
determined hostility.
The next class of offences are those which affect the
public tranquillity; and they form the subject of the
sixth title. The first chapter comprises two offences of
this nature-unlawful assemblies and riots; the first
being a preparatory step to the second offence. They
are both so clearly defined as not to be easily confounded;
and although both are taken, in their general features,
from  the English law, there are several modifications
introduced, which, it is hoped, will be considered as




268            iNTRODUC'ORY REPORT 1;O
improvements.  If the object of the one or the other
offence be in opposition to the collection of taxes, or to
a sentence of a court, or for the purpose of effecting a
rescue, a definite increase of punishment is ordained,
instead of leaving this entirely to the discretion of the
court, which would have induced the necessity of an
enlargement of that discretion in fixing the original
punishment, so as to embrace the two cases. To encourage obedience to the law, it is provided, that if any
one, either voluntarily or in obedience to the admonition
of a magistrate, shall leave an unlawful assembly, without any intent to return, before a riot has been committed,
that he shall avoid the punishment due to his assisting
in the first offence. An increase of punishment is also
directed against those who shall appear armned at such
unlawful assembly or riot; and to avoid all equivocation, the term is one of those that are designated as being
used in the sense described in the Book of Definitions.
A proceeding, analogous to that of reading the riot act
in England, is directed to be had by the magistrate, to
disperse an unlawful assembly, or put an end to a riot;
but it is one that, it is thought, is better calculated to
strike the attention, while its purport is equally or more
intelligible to such an assemblage; and it consists in the
display of a flag, accompanied by a short proclamation;
the effect of disobedience to which is pointed out; and in
the correspondent chapter of the Code of Procedure all
the forms are given, as well as tle mode pointed out for
calling out and employing the military, in aid of the civil
power, when the first is insufficient to restore order.
An article in this chapter imposes a penalty on those
exhibitions of pugilism which disgrace any society in
which they are suffered.
Public disturbance is a minor species of this general
offence, and it is made punishable by a slighter penalty,
and may be repressed by the summary interference of
the magistrate.
Articles containing negative provisions prevent any
interference with legal meetings.




THE CODE OF CRIMES AND PUNISHMENTS.       269
Offences against the right of suffrage form  the im.
portant subject of the seventh title. Bribery, violence,
undue influence, are endeavoured to be guarded against
by enactments, sufficiently explicit to be understood
without commentary, and by penalties proportioned and
analogous to the several offences.
The eighth title would require much elucidation, if the
subject of it had not already been submitted to the
legislature, and if its provisions had not received their
sanction and produced some strictures; but being founded
in true principles, the more closely it has been examined
the more clearly has its utility appeared; and if a
novelty, it is not one of those that can be characterised
as dangerous or useless. While we all profess a respect
almost amounting to adoration for the liberty of the
press, we may be permitted to wonder that it has, as yet,
been protected by no penal enactments, while every code
abounds with laws to guard against its abuse, and frequently, too, under that pretext, to destroy it. Our
state has been more particular than most of the others,
in guarding this precious privilege, by its constitution;
but the constitution could, of course, contain no penalty
for a breach; that care was left to the legislature.  We
cannot too often recur to the very words of our fundamental law on that subject; full of foresight and wisdom,
they are calculated to defeat every attack that might be
made by open violence or insidious attempts upon this
safeguard of our liberties: "Printing presses shall be
free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government, and no law shall ever be made to restrain the right
thereof" (a).  But if such a law should be made; if a
wicked and corrupt legislature should try to repress any
discussion of their proceedings by heavy penalties; and
if a subserving judiciary should be found to execute their
unconstitutional statutes, where is the remedy?  Should
there be none? Why should disobedience to this con(a) Constitution of Louisiana, art. vi. sect. 21,




270             INTRODUCTORY REPORT TO
stitutional law go unpunished? Surely the immorality
of the act, and most surely its injurious tendency, are
sufficiently apparent to call for and to justify repression
and punishment. Surely the legislature, which provides
a sanction for this wise and highly important law, are
performing a sacred duty.
Again: this was a favourite theme with the framers of
our constitution. They seem loth to quit it while any
thing remains to be said that could show the high regard
they had for this privilege. They add: " The free com.
munication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak,
write, and print on any subject, being responsible for the
abuse of that liberty." But if that freedom, thus intended to be secured, is endeavoured to be shackled by
threats, by actual violence, by the illegal exercise of
judicial power, under pretence of an alleged abuse? Are
not laws tending to restrain these abuses worthy of the
attention of the legislature when it is forming a system
of penal law? Either the privilege was not worth all
the care and attention which has been given to it in the
constitution, or it is worth that of the legislature to
protect it. Without some law of this kind, the constitutional provision can have no efficient operation. But
with the aid of the penal law, it receives the force and
effect which its importance merits.
A very superficial attention to one of the articles has
produced an objection that seems to have had some
weight, but which is entitled to very little.  The article
imposes a penalty on any judicial or other officer who,
under pretence of any law which contravenes the constitution in this respect, shall restrain or prevent the exercise
of the liberty of discussion secured by the constitution.
Now, it is said, if a legislature be found wicked enough
to pass such an unconstitutional law, they will also, to
secure its execution, repeal that part of your code, and
your penalty then goes with it.  This objection was
anticipated in the first report, and it was answered that
attacks upon the privileges of the people are, for the




THE CODE OF CRIMES AND PUNISHMENTS.    271
most part, insidiously made under pretence of public
good, and clothed, at least, with a specious regard for
constitutional forms; and that a repeal of this part of the
code would take off the mask and put the friends of the
people on their guard, and therefore it would not be
attempted; or, if it were, that the repeal of this part of
the code, like the attack of an outpost, would put the
main body on their guard. Another reason may now be
added: that a law infringing that important part of the
constitution might be passed, not from any direct hostility to the liberty of the press in general, but for the
purpose of some party advantage or other temporary
motive in troublesome times; and, in such case, it would
not be accompanied by the repeal of the code. Again:
the existence of this article in the code, at least, forms
an additional security, for members might be found to
concur, from interest or passion, in abridging the liberty
of the press, who might not go the length of repealing
the article; and every additional security which is
attended with no inconvenience  and none can be even
supposed here-is of the highest importance.  ~And,
finally, admit that it may be rendered nugatory by a
repeal: yet, if it should be of use until that repeal takes
place; if it should defeat one unprincipled attempt to
destroy this sacred privilege; if it should only give time
for its friends to rally in its defence, it would be of inestimable value.
As expression, also, of legislative opinion, its importance is not small; and the vigilance which it testifies in
the guarding of constitutional rights will not only reflect
honour on those who pass it, but teach the people how
to appreciate those rights which they see thus carefully
enclosed with penalties.
One more reflection, and I dismiss the subject with a
simple reference to the chapter which contains nothing
that needs an explanation to elucidate any further the
several offences and their punishment: that reflection is
this,-that there is no one possible inconvenience attending the execution of any of the enactments of this chapter.




27            INTRODUCTORY REPORT TO
No penalty can fall on any person who does not openly
and wilfully violate one of the most important parts of
his country's constitution; no ambiguity in the definition
of the offences; no undue severity in the punishment. It
is new! This is the "very head and front of its offending;" but it is not dangerous.  It is believed to be
necessary and highly useful.
The ninth title relates to offences affecting public
records: on which subject we have now three provisions
in the 19th and 20th sections of the act of May 1805,
and the 8th section of the act of 19th March 1818. By
the first it is forbidden feloniously to steal, take away,
alter, falsify, or otherwise avoid any record, writ, process,
or any proceeding in any of the courts, under the penalty
of fine to three thousand dollars, and imprisonment at
hard labour not exceeding two years.
The second provides that those who shall deface, alter,
or embezzle any record, or enrolment, or matter, or
instrument recorded, or registry thereof, with intent to
defraud, shall pay a fine to one thousand dollars, be imprisoned at hard labour to two years, and be rendered
incapable of holding any office.
By the third, if any person shall forge, or counterfeit,
any public record or attestation of a public officer, where
such attestation is legal proof, he shall be punished by
solitary imprisonment to one, and at hard labour not less
than two nor more than fourteen years.
Thus, taking these sections together, we find, first, that
to steal or alter the record of a court may be punished
by a fine of one cent and imprisonment for one hour, but
that the fine cannot exceed three thousand dollars nor
the imprisonment two  years; whereas the minimum
punishment for forging a record of enrolment is exactly
the maximum that is inflicted for stealing or forging the
record of a court, unless the general expression, record,
in the third act, should be construed also to include court
records; in which case there would be the difference I
have stated between the punishments for stealing and for
forging the same record.




THE CODE OF CRIMES AND PUNISHMENTS.       273
Secondly, that there is a difference in the punishments
of the two offences, designated in the first two sections
respectively, that does not seem to be warranted by any
distinction between them, in moral guilt, or public or
private injury.
Thirdly, that in a fair construction of the words employed, all three of the sections include the same offence,
to wit, forging the record of a court. The first designates, as one of the acts it forbids, to alter, falsify, or
otherwise avoid any record, or other proceeding in any
court. The second, to deface, or alter, or embezzle any
record, enrolment, or matter of record, &c. The third,
to forge, or counterfeit any public record.  All of these
have different penalties. Are they all to be inflicted?
The reasoning of the court (a), above quoted, would seem
to decide the affirmative of this question, for none of
them contain a repealing clause, and two of them are in
the same act.  Yet, if they are, what confusion must
ensue.  This evil is remedied by  the code; these,
and all other offences of the same nature, are clearly
described; all the words used in the description are
defined; and the distinction, between the guilt and
mischief, where an officer, who has the custody of the
records, betrays his trust, by falsifying or destroying
them; and the same crime committed by any other
individual, is marked by an increase of punishment.  In
this, as well as in a subsequent title, the law is simplified by using a general description of the records intended to be protected against falsification and other
injury, rather than by an enumeration, which is generally made imperfect in a few years by other instruments
coming in use, which it is also necessary to protect. False
certificates of recording officers, personifications to execute, or acknowledge, or prove authentic instruments, are
provided against; and a section, describing what shall be
deemed a fraudulent use of a forged record, will, it is
believed, clear up doubts that have heretofore existed on
that subject.
(a) 10 Martin.
S




274           INTRODUCTORY REPORT TO
The title of offences against the current coin of the
state, is so drawn as to embrace every offence of this
nature.  There is, among others, a section making it
penal to possess counterfeited coin with the intent to
pass it as true, either in the state, which is the provision
of the present law, or to send it, for that purpose, into
any other of the states, or into a foreign country. This
is new in penal legislation, but it was thought honourable to the state to prevent its being made a den, in
which coiners might carry on their fraudulent manufactory to the injury of other countries, whether enemies
or friends; and as one step towards the application of
that golden rule, "to do as we would be done by," to
nations as well as to individuals. These advances need
only be begun; they will be reciprocated; each will
promote its interest as well as its honour, by making or
meeting these advances, and from the most trifling beginnings, consequences most important to human happiness may result.
The great evil to the revenues of the state, arising
from a misapplication of public moneys by those entrusted to receive them, was seriously considered, and a
preventive remedy is proposed, which, it is thought, will
in a great measure take away the temptation to the
offence. A forced deposit of all moneys, by leaving no
large sums in the possession of the party, will leave him
little inducement to incur the penalty; and the measures
described in the code, are such as cannot fail to bring on
detection in case of disobedience. After the deposit is
made, it cannot be withdrawn without a deliberate crime,
the commission of which, in the nature of things, cannot
remain concealed. In ordinary cases, this breach of trust
is made with the design of replacing the money before
it can be called for; and this honest intention palliates
to the party the irregularity of the conduct. But if this
was to be preceded, before any advantage could be made
of the money, by a false check, that must remain on file
and insure the conviction of the party, he will, nine
times in ten, refrain from the offence, and the revenue
will be free from this risk.




THE CODE OF CRIMES AND PUNISHMENTS.     275
Extortion by collectors, or violence against them, are
equally provided against.
Under the head of offences which affect commerce and
manufactures, we have, first, those which affect foreign
commerce.
These are offences against the inspection laws; shipping articles without inspection, when it is required by
law; and counterfeiting marks or brands of the proper
officers. The frauds which have been but too common
in packing articles of little value in boxes or bales, intended for exportation, are punished by an adequate
penalty. Destroying a vessel on the high seas, by the
master or mariners; frauds against insurers, either in or
out of the state, by shipping articles of inferior value;
and any act done in the state, preparatory to a fraud to
be completed abroad; or any such act done out of the
state, if the fraud is to be completed within its limits,
make the party liable, and this in virtue of a principle
that has been before discussed.
A chapter regulates the conduct of tavern-keepers in
regard to seamen; and refers to the existing laws on
that subject, it being rather a matter of police than of
penal law.
A short chapter contains the usual and simple penalties
against using false weights and measures; and another
has some new enactments to punish the fraudulent use
of false marks on merchandize, which usually denote the
quantity or quality of the article contained in the
package.
The next class of offences, which may be distributed
under the head of those which injure the commerce,
manufactures, or trade of the country, are those affecting
the validity of written contracts-a most important title
in the criminal law of modern times, although scarcely
known in the simple code of our ancestors, in the middle
ages. Among the offences of this class, forgery is the
most prominent. As was natural, it has closely followed
the footsteps of paper credit.  It has increased with
increasing commerce, and thrives most where the circu



276           INTRODUCTORY REPORT TO
lation of bank paper is most widely spread. In England
it was an offence at common law; but it could not be
very prevalent at a time when commerce was barter, and
when the evidences of public and private credit, being
alike unknown, little inducement was offered for the
exercise of the ingenuity of the very few who had
learning enough to commit the offence; being then
neither felt nor apprehended as a serious evil, it was
punished only as a misdemeanour.
By the first statute (8 Richard I. c. 4) it would
appear that this crime was only apprehended from judges
and clerks, and in the falsification of court records alone.
From the provisions of the statute of 8 Henry VI. we
may judge that it began to make some progress; that
others, besides judges and clerks, tampered with the
records, and that the evil was sufficiently prevalent to
require a severe penalty; for by that statute the offence,
by whomsoever committed, is raised in the calendar of
crimes to the rank of felony. But by the operation of a
clerical privilege, this law had the effect of exempting
from punishment the only persons who were enabled to
commit the offence; while its penalties could be enforced
against those only who were under a physical incapacity
of incurring them: although the crime could be committed
by none who could not read, the knowing how to read
was the certain means of escaping punishment; which
was only inflicted on those who demonstrated, by their
ignorance of that art, that they were not guilty.  This
absurdity continued until late in the reign of Elizabeth.
We then find the government first beginning to pay some
attention to the subject.  Their statutes, however, protected no species of written contracts, until experience had
shown that it became the object of the offence, and its
prevalence forced them to legislate; but even then, they
carefully restricted their protection to that species of
writing which called for their immediate attention, leaving
all others to form the subject of another law, when their
introduction into commerce should tempt the hand of the
forger to counterfeit them; so that the English statutes




THE CODE OF CRIMES AND PUNISHMENTS.    2977
might serve as a chronological catalogue of the securities
successively in use, from the time of the first statute to
the present day.
The first enactments on this subject are, I believe, the
statutes of Richard II. and Henry VI. before referred to.
Neither of these relates to any other forgery than that of
records. From that time no other writing seems to have
claimed the attention of the law, until the fifth year of
the reign of Elizabeth, when the forgery of deeds, charters, sealed writings, court rolls and wills, by one section;
and by another, that of obligations, acquittances and
releases, was punishable by mutilation, imprisonment and
forfeiture. During this reign there is but one other law
on the subject (a), which relates to soldiers' and mariners'
passes, and makes the forgery of them felony, without
benefit of clergy. From this time, for more than a century, I find no statute referred to in the treatises on this
subject; but they multiply afterwards in an extraordinary
ratio. There are two in the reign of William III.- five
in that of Anne —eight under the first George-ten in
the reign of his immediate successor-and thirty-seven
from the 1st to the 45th of George III., since which I
have no account, making, in all, more than sixty
statutes, bearing on different modifications of the same
offence.
This legislation was inevitably confused from its prolixity. It was also, from its nature, in some degree
inefficient. By attempting the difficult, perhaps the
unattainable, object of protecting every species of writing
by name, it constantly left some unprovided for, and, of
course, open to the enterprise of offenders; until the
statute, like the "Pxena pCede Claudo" of the poet, came
limping behind it with a new penalty. But the application of this penalty was attended with new difficulties
from the defects of the system. As each penalty was
denounced against those who falsified a particular instrument, it was necessary, in the act of accusation, to charge
(a) Stat. 39 Eliz.




278           INTRODUCTORY REPORT TO
that the writing in question was one of that particular
class. A mistake in this nomenclature has proved fatal
to more than one prosecution.
Another source of uncertainty in this system is, that a
change of circumstances and habits in the country, may
render the law obscure and sometimes unintelligible,
The name by which certain writings are designated in the
act, may be well understood at the time of its passage,
and afterwards, by disuse, become wholly unknown, at
least to the people; for instance, in the territorial law of
1805 it is made forgery to counterfeit a cotton r'eceipt.
This instrument is understood in those parts of the state
where cotton is the staple commodity, to mean a kind of
negotiable receipt, given by the owners of cotton gins, to
their customers, for cotton brought to be cleaned; but in
the lower part of the country, I doubt whether it is, even
now, generally understood, and certainly it would not be,
if either that species of culture were abandoned, or if, by
the invention of some cheap machinery, every planter
should clean his own cotton. In either of these cases,
the term might be applied to some instrument for which
it was never intended.
Our legislature might have avoided these inconveniences, but unfortunately they proceeded on the same
vicious plan, of enumeration, which had been adopted in the
statute law of England; and as might have been expected,
with the same effect; although in framing our law of
1805 we had the English catalogue before us, and might
cull from her statutes all the writings which we wish to
add to those in use among ourselves, for the purpose of
protecting them against forgery; yet since that period,
two other statutes (a) have been found necessary to
increase the list; and in progress of time, our statute
book, unless some other system  be resorted to, may
on this head, vie in prolixity with the " statutes at
large."
The means of avoiding these inconveniences are so
(a) Acts of 22d Feb. 1817, and 20th March 1818.




THE CODE OF CRIMES AND PUNISHMENTS.    279
obvious, that I was, at first, inclined to think that some insurmountable objection, which I could not discover, must
have prevented their adoption. But when the most deliberate exercise of my judgment could suggest no such objection, I ventured upon the description of the offence, not
by enumerating the different writings which should be its
object, but by a definition, intended to embrace all those
which it is the policy of the law to protect by the high
penalties attached to the crime of forgery, and to exclude
all those which, from their nature, ought not to be the
subject of that sanction. This change is offered with
some confidence, because the foundation of it is laid in the
definition of this crime by the common law, which, as far
as my reading and observation have gone, has given rise
to much less uncertainty of decision, than has taken place
in the practice under the statutes. By these means all
the uncertainty, arising from an erroneous charge in the
indictment, as to the species of contract, and it is no small
item, will be avoided. It will be, hereafter, only necessary
to describe the effect of the instrument, not to declare to
what class of contracts it belongs; and every instrument,
which the convenience of commerce or the extension of
obligations may introduce, will, at once, be protected by
the law, without a new statute to add its name to the
list. The next change from the present system, which is
proposed, grew naturally out of the first. By the thirtythird section of the law of 1805 it is enacted, that "all
the crimes, misdemeanours, and offences, therein enumerated, shall be taken, intended, and construed according
to, and in conformity with, the common law of England."
This has always been construed into an adoption of the
common law definition of the several offences which are
made punishable by our statute law, where the statute
itself gave no other definition. But by the common law
some acts were considered as forgery, which could not be
brought within any reasonable definition of the offence:
if a man, who had made a conveyance, should afterwards
execute another of a prior date, for the same property,
with intent to defraud; or if he passed a note, signed by




280            INTRODUCTORY REPORT TO
himself, pretending that he was another person who bore
the same name, but had better credit; or if he procured
the execution of an instrument which had been secretly
altered, or substituted one for another before agreed upon;
all of these acts were classed under the head of forgery.
They can be placed there, however, only by an arbitrary
arrangement, which destroys all systems, and sets definition at defiance.  They have this, in common with
forgery, that they are all fraudulent acts, and are all
committed by means of written instruments; but forging
implies falsification of an instrument, and cannot be committed by the fraudulent use of a true one, or by the
alteration of a writing before it becomes the act of any one.
I have, therefore, characterized them as offences affecting written contracts, and annexed to them different
measures of punishment, proportioned to the offence, but
have not considered them as forgeries. In the definition
I have offered of forgery, the intent to defraud is equivalent to the actual completion of that part of the offence.
In that the new plan coincides with the present system;
but it differs from it in this, that no particular person
need to be assigned, as the one on whom the fraud was
intended to be practised. The necessity for this designation, and the uncertainty of the proof, leads now to
the escape of the guilty. But although the allegations
of fraud be general, it can never injure the innocent; for
if it does not appear from the instrument, it must always be
-strictly proved. An inspection of the different articles of
this chapter will render any further exposition of them
here unnecessary.  If its provisions are well drawn, it
provides for all those offences affecting the validity of
written contracts, which have been deemed worthy of
punishment by the English law, or which require it under
our state of society. The falsification of other writings,
not affecting property, such as public records and other
official acts, is provided for in other parts of the code.
Although, by the general plan, all the definitions of
technical words used in the code are collected in the book
designated for that purpose, this order is deviated from,




THE CODE OF CRIMES AND PUNISHMENTS.       281
in cases where words or phrases are used exclusively in relation to any particular offence, in which case they are
sometimes placed as articles in the section which treats of
the offence.  This deviation is more perceptible in this
chapter than perhaps any other in the code, and it extends
in this instance so as to embrace definitions of some
words that are not used exclusively in regard to the
offences contained in that chapter.  It was resorted to in
order to bring into one view every thing necessary for
the full understanding of an important class of crimes;
but, in all such cases, the same definitions will be found repeated in the Book of Definitions.
In order to give a connected view of all the changes
that are proposed as well in the prosecution as of the
definition of this class of offences, I must anticipate here
some observations which regularly would find their place
in the introductory discourses to the Code of Procedure
and the Code of Evidence. As to the first; that part of
the Code of Procedure which relates particularly to
prosecutions for offences under this chapter, contains
some provisions which require particular notice. One
great inconvenience in the present system, has already
been hinted at; the necessity of giving the false instrument a name in the indictment, in other words, of charging
that it purports to be a receipt, a note, or some other
of the writings which are specifically enumerated in the
various acts. By substituting a definition instead of such
a catalogue, this difficulty in the practice is avoided.
Another very fruitful source of captious exceptions arose
from the necessity of setting forth exact copies of the
instrument in the indictment, a mistake in which led
always to delay, and sometimes defeated the ends of
justice. It is thought that the provisions on this subject
will effectually prevent this evil; while, at the same time,
they assure to the accused every degree of certainty in
the accusation, necessary to a full understanding of the
charge, and every facility which justice and humanity require for making his defence. The hope of escape, by
some technical exception, animates every culprit; he




282            INTRODUCTORY REPORT TO
generally overrates his chance of acquittal from this source;
and it is, therefore, a point of the greatest importance to
cut off this hope of impunity, to convince the accused
that no defect of form can under any circumstances, procure his escape; and that the only chance of safety lies
in an acquittal on the merits. This conviction, once
deeply impressed on the minds of offenders, and counteracted by no examples of impunity from defects of form,
will have the happiest consequences, particularly in this
description of crime, in which these objects are at present
most common, and on which, well or ill-founded, the
guilty place the greatest reliance for escape. To effect
these important ends, provision is made in the Code of
Procedure, that before the defendant can be called to
plead, he shall be furnished with a copy of the instrument said to be forged, have an opportunity of comparing
it with the original, and at a time assigned be called on
to produce his objections, either for any variance, for
misnomer, or any other defect of form; these are to be
disposed of in a manner directed by the code, before the
plea; and then the trial takes place, divested of any other
inquiry but that on the merits.
This part of the Code of Procedure provides also simple
forms of indictment for every offence contained in the
corresponding division of the work, and for every modification of these offences; from which it has been endeavoured to discard all superfluous allegations, but to give
to the accused all necessary information of the nature of
the charge against him; but a close adherence, even to
these forms, is not rendered essential, and means are
taken, and it is hoped effectual means, to remedy every
evil arising from exceptions to defects of form. I now
pass to the consideration of a few rules of evidence,
contained in the Code of Evidence, applicable particularly
to trial for offences of this class.
By the English law, the person whose name is forged,
was not admitted as a witness to prove the forgery, if
any suit could have been supported against him on the
instrument, if it were true. This exclusion is, by the




THE CODE OF CRIMES AND PUNISHMENTS.     283
English jurists, endeavoured to be reconciled to the
general rule, that direct interest alone shall be deemed
an objection to the competency.
1st. From the consideration that the forfeiture consequent on conviction vested all the property of the offender,
and, of course, the instrument on which he was convicted,
in the crown, who neither could, nor would, enforce the
payment of it after conviction; and that, therefore, there
is an evident interest in the witness to procure such
conviction.
2nd. That it is the practice of the courts to impound
the instrument on which a conviction for forgery took
place; that is, to keep it in the hands of their officer to
prevent a fraudulent circulation, and therefore it would
be the interest of the witness to procure a conviction,
because, in that case, the difficulty of succeeding in a
private suit would be insurmountable.
The first of these reasons cannot apply here, where
forfeiture is unknown; and the practice on which the
second is founded, is so modified in the new code, as to
give facility to the bringing a civil suit, even on an
instrument which, in the criminal court, has been
declared a forgery. There can therefore be no foundation
for alleging an interest, that would render the witness
incompetent under our law; and to exclude him for any
other of the reasons usually alleged, would be a departure
from principle, and destroy the harmony which ought to
prevail between the rules of evidence in criminal and
civil cases. It is true, that a bias may not unreasonably
be suspected in such a case against the prisoner. But it
is one that can be appreciated by the jury, and therefore
ought to go to credit, rather than competency.
"In adopting this rule you will only sanction what
has heretofore been practised in this state, and in several
others governed by the principles of common law; but
as there has been a diversity of decision on this point,
and as the English rule is at present observed by our
courts, it was thought proper, for the reasons alleged, to
abrogate it by a legislative provision."




284           INTRODUCTORY REPORT TO
The chapter on fraudulent insolvencies has been framed
with a view of making it applicable to the present system
of insolvent laws, or to any other that may be substituted
for them. The great evils to be apprehended in those
cases being, the concealment of property, the fraudulent
conveyance of it, and the creation of fictitious debts. All
these have been provided against, by penalties applicable
as well to the dishonest debtor as to the persons who
may colleague with him, to the injury of the creditors.
These penalties extend to penitentiary imprisonment for
making a false and fraudulent schedule of property or
debts, or for wilfully destroying books or papers, with a
design to defraud. The other offences being such mleasures as are, for the most part, resorted to in moments
of embarrassment and trouble, not showing such depravity
as calls for the discipline of the penitentiary, it was
thought would be sufficiently corrected by suspension of
certain political and civil rights, and by imprisonment.
The circumstances of the insolvent forbade the addition
of any fine to his offence; but it forms part of the punishment of those who collude with him, and who may be
supposed to have the means of paying one.
By the single article of the thirteenth title, respecting
offences affecting public property, it is declared, that all
the provisions for the protection of private property, apply
also to that of the public. And in the fourteenth title is
also comprised one general provision referring to the
ordinances of the juries of police, and the public corporations of cities and towns, for the laws respecting the
making and enlarging the levees, roads, bridges, streets
and public squares, and for the penalties they impose for
a disregard of them; it having been found impossible, in
a permanent system, to provide for the varying legislation
that the changing nature of the subject would require;
or, in a general system, to embrace all the circumstances
which the local police might require. But two chapters
under this title contain the only enactments on this subject, which, from their nature, could be justly made
permanent and co-extensive with the state in their local




THE CODE OF CRIMES AND PUNISHMENTS.      285
operation. These two chapters are based upon the present
law, and, therefore, need no further elucidation.
The fifteenth title relates to offences injurious to public
health or safety. At the time it was written the Code of
Public Health was in force. As it has since been repealed, it is presumed that the legislature do not consider
any provision against the introduction of infectious and
contagious disorders to be necessary, and the chapter on
that subject is suppressed. The first chapter of this title,
as it now stands, imposes a penalty on all those who store
gunpowder in greater quantity than ten pounds, within
one hundred yards of a dwelling-house, or public road, or
the land of any person who does not give his consent; who
carry on trades injurious to the health of those who live
in the vicinity; and against those who adulterate provisions,
liquor, or drugs, so as to make them injurious to health.
Offences against morals are the subject of a title containing four chapters.
The first relates to disorderly houses, and its provisions
coincide substantially with those of our statute, but the
offences are more precisely defined.
The second chapter contains prohibitions entirely new
in our law, although they form a very comprehensive
part of the English common law, under the title of
Offences against Decency. This is quite undefined in
that law. In the chapter which I present, it is restricted
to four cases: indecent exposure of person; insulting and
indecent language to a woman; deliberate seduction,
under promise of marriage; and the infamous agency of
ministering to the vices of others. Seduction is not, I
believe, punishable in England, unless preceded by a
conspiracy; nor in any manner whatever by our statutes.
Yet, if we consider the base profligacy of the act, by
which the most implicit confidence is betrayed, and the
most solemn promises are deliberately broken, not only
to the utter ruin of the unsuspecting victim, but to the
disgrace and misery of her connexions, it is one in which
the immorality of the act, and the misery it inflicts, both
require exemplary punishment.




286            INTRODUCTORY REPORT TO
Although the private excesses of the passion between
the sexes cannot, with propriety, be made the subject of
penal law, yet public opinion, in all nations, has marked,
by its decided reprobation, him who, without being excited by his own passions, ministers to those of others for
gain, and in that vile office frequently seduces innocence,
or purchases the influence of infamous or necessitous
parents to the dishonour of their child. The indication
of public sentiment has, on this occasion, been pursued,
and the act has been made penal by the code.
It seems right and proper that the law should lend its
aid to punish all acts against individuals that provoke a
just resentment, which will naturally vindicate itself, if
the law refuses its aid. It is for this reason that the
article, imposing a penalty on indecent and insulting expressions to a woman, has been added.  It has been
considered, by one whose authority and opinions I highly
respect, as descending into minutife unbefitting a penal
code, and as one of those offences to be repressed by
public opinion or the fear of private chastisement, rather
than by law. If the force of public opinion were a sufficient sanction, I should have proposed no other; but it
is because its insufficiency is acknowledged, and private
resentment is proposed to aid its operation, that I propose
to substitute the regular action of the law to the uncertain
penalty of individual passion.
Whether adultery should be considered as an offence
against public morality, or left to the operation of the
civil laws, has been the subject of much discussion. As
far as I am informed, it figures in the penal law of all
nations, except the English; and some of their most
celebrated lawyers have considered the omission as a
defect.
Neither the immorality of the act, nor its injurious
consequences on the happiness of females, and very
frequently on the peace of society and the lives of its
members, can be denied. The reason, then, why it should
go unpunished, does not seem very clear. It is emphatically one of that nature to which I have just referred, in




THE CODE OF CRIMES AND PUNISHMENTS.     287
which the resentment of the injured party will prompt
him to take vengeance into his own hands, and commit a
greater offence if the laws of his country refuse to punish
the lesser. It is the nature of man, and no legislation
can alter it, to protect himself where the laws refuse their
aid; very frequently where they do not. But where they
will not give protection against injury, it is in vain that
they attempt to punish him who supplies, by his own
energy, their remissness.  Where the law  refuses to
punish this offence, the injured party will do it for himself; he will break the public peace, and commit the
greatest of all crimes, and he is rarely or never punished.
Assaults, duels, assassinations, poisonings, will be the
consequence. They cannot be prevented; but perhaps,
by giving the aid of the law to punish the offence, which
they are intended to avenge, they will be less frequent;
and it will, by taking away the pretext for the atrocious
acts, in a great measure insure the infliction of the
punishment they deserve. It is for these reasons that
the offence of adultery forms a chapter of this title
Different punishments are awarded, to the unfaithful
wife-to the inconstant husband, who is so regardless of
honour, and decency, and public opinion, as to keep a
concubine in the house with his wife, or to force her, by
ill-treatment, to leave it and give place to the usurper of
her rights. The reasons for this distinction, between the
offence of the husband and wife, are obvious, and founded
in nature. The paramour of the wife is also punished by
fine and imprisonment; and to avoid collusions, no
prosecutions against the wife can be carried on unless
the partner of her crime is joined in it. This regulation,
too, will be some check to the heartless seducer, who
might otherwise look with indifference on the penalty
suffered by another for the crime of which he was the
principal cause.
It is provided, under this head, that no prosecution for
this offence shall be commenced but on the complaint of
the injured party, and that it shall cease if they become
reconciled before sentence.




288            INTRODUCTORY REPORT TO
The respect paid to the bodies of the dead, which from
its universality would seem to be a natural sentiment,
has suggested, in all countries, laws, or customs having
the force of laws, forbidding as a kind of sacrilege the
violation of the receptacles for human remains, whether
they be embalmed, interred or consumed.  The catacomb,
the grave, and the urn, were held equally sacred; and
any intrusion upon them has always not only been considered as immoral, but punished as a crime.  It is in
vain that pretended philosophy affects to consider it as
prejudice. The feelings of the philosopher belie the
language of his wisdom; and however indifferent he
might feel as to his own remains, he would not see without affliction, the body of a friend or relation torn from
the grave, even to promote the progress of science.  It
is in vain that we are told, and are truly told, that the
health and life of the living ought not to be sacrificed to
a vain respect for the body of the dead, incapable of
suffering here, or feeling the ignominy of exposure; the
reason may be convinced, but the feeling remains.
Science must be content with subjects whose dissection
will interest the feelings of none who are alive. The
bodies of those few, who, themselves above this prejudice,
devote their remains to the cause of science; those of
malefactors who die in the imprisonment inflicted by the
law, Llust suffice for the improvement of surgical knowledge. But the laws must protect, in the place of their
lasting rest, the remains that are sacred to the memory
of surviving relations or friends. This natural feeling has
not been neglected in the code which is presented, and a
proper punishment is denounced against every violation
of the sanctuary of the tomb.
We have now closed the review of those ofiences which,
powerfully affecting the community in general, have been
classed as public offences. The seventeenth title commences the other division, distinguished as Private
Offences; and first of these stand such as affect individuals
in the exercise of their religion.  In most other systems




THE CODE OF CRIMES AND PUNISHMENTS.      289
of penal law this title is much more extensive.  It there
embraces a species of offences carefully excluded from
this.  In those systems the dominant religion is personified, and rendered by this fiction subject to be injured by
investigating its truth, or doubting its divine origin.
Nay, the Supreme Being himself is sometimes impiously
substituted for the mode of worship or tenets of faith
which prevail in the state, and his almighty power is
protected by vain laws to punish " offences against God
and religion "(a). The code offered to you does not contain this absurdity. The exercise of religion is considered
as a right: an inestimable one. It is restrained only by
those limits which must restrict all rights, that they do
not encroach on those of another; or, in other words, do
not change into wrongs. All articles of faith, all modes
of worship are equal in the eye of the law: all are
entitled to equal protection. The fallibility of human
laws does not undertake a task to which unerring wisdom
alone is competent. The weakness of human laws does
not attempt to avenge the cause of infinite power; and
injuries and insults to the Deity, are left to the being who
asserts his rights to the exclusive cognizance of such
offences: "Vengeance is mine; I will repay, saith the
Lord."  The code has not ventured to trench on this
divine prerogative; but the provisions of this title will be
found to repress or punish any wanton, or intolerant
attempt to disturb or persecute; while every necessary
authority is secured to religious societies for the preservation of order among their members. So that the
general principles announced in the preliminary chapter
to the code, taken in connexion with the provisions of this
title, evince that this state will give effect to the noble
experiment that has so successfully been tried in these
republics —of giving perfect liberty to conscience-perfect
protection to all religions, and substituting perfect equality
for insulting toleration; an experiment which demonstrates
how fallacious is the argument of a necessary connexion
(a) 4 B1. 43.
T




290            INTRODUCTORY REPORT TO
between church and state; which shows that true piety
may be preserved amid a variety of religious tenets; and
proves that liberty in religion has the same influence
on the great virtues, which all sects consider as essential
to produce eternal happiness, as liberty in government
has on those which are the basis of political prosperity.
To repress injuries to reputation, is a duty more incumbent on legislation since the introduction of printing
has given so many facilities to assail it; but the task is
rendered more difficult, because the same instrument,
usually employed in the work of detraction, is one that is
necessary to spread information, promote science, support
political and civil liberty, and propagate the truths of
religion. To permit its unrestrained employment for
these noble ends, and at the same time prevent its being
used as a means of destroying reputation, is the task that
must be performed if we wish to preserve consistency in
this important division of our Penal Code. This, it was
believed, could be done only by defining the offence, and
then laying down as deductions from such definition, a
set of negative as well as affirmative rules, declaring what
species of assertion shall be punishable as illegal attacks
upon reputation, and what shall be permitted in order to
avoid the greater evil of restraining the proper liberty of
speech and of the press.  In performing this task, alterations have been made in the present law, which were
necessary to adapt it to the letter and spirit of our constitution; the provisions of which have been adverted to
in that part of the report which treats of offences against
the liberty of the press. These provisions will be pointed
out, although not in the order in which they stand in the
chapter.
1. The undefined, and perhaps undefinable, offence of
libelling the government, a court, or any other aggregate
body, is abolished, as inconsistent with the spirit of the
constitution.  It gives unqualifiedly the right of using
the press for the purpose of "examining the proceedings
of the legislature, or any branch of the government," and
declares, that no law shall ever be made to restrain this




THE CODE OF CRIMES AND PUNISHMENTS.    291
right. But of what avail would this privilege be, if
public bodies were guarded by the rules that apply to
libels against individuals by the English law? Every
thing, according to that law, that tends to bring a person
into contempt or disgrace, is a libel; and although the
strictures are true, the guilt is not lessened, but, according to some authorities, enhanced.  Therefore, every
discussion of a legislative measure, or a judicial decision,
which tends to show folly in the one, or injustice in the
other, would be punishable as a libel; and the very end
which the constitution had in view would be defeated.
The restriction that every one is liable for the abuse of
the liberty, clearly does not apply to any latitude of animadversion whatever upon public measures; but to the
injury that may be done to private character. As to
public measures, there can be no abuse of the right. It
must be unrestrained, or it is no right; for you can rest
the right of repression nowhere but in the hands of some
public functionary; he must be guided by laws made by
the legislative power; and with this power of making the
rule and of interpreting the publication that is supposed
to be obnoxious to it, the privilege of publishing and discussing would soon be brought within limits too narrow
to be of any value, unless it was guarded by the constitutional declaration, and by laws made to give to it its full
effect. Nor can the abuse of this liberty be attended
with any great or permanent inconvenience; certainly
with none that can be compared with that of the restraint.
A false representation of legislative proceedings can have
little or no effect in a country where the press is as free
to correct as it is to spread it. In a country where laws
are made by a numerous body, whose proceedings are in
public, misrepresentation is destroyed the moment it
appears, and injures no one but its weak or wicked author.
The terms of a law may be grossly misrepresented. The
next day it is published, and the falsehood is detected.
No injury is suffered by the public; but the penalty falls
on the author, who loses his credit for veracity or discernment. The reasons which led to the passage of the law,




292           INTRODUCTORY REPORT TO
are erroneously and falsely stated; they are ascribed to
ignorance of the true interests of the country-hard at
the heels of the calumny comes its refutation in the publication of the debates, and the public sustains no injury
from the calumny offered to a public body in its aggregate capacity. The same reasoning applies to the judiciary,
considering courts in their incorporeal capacity. The
publication and the publicity of their proceedings wiTl
always correct any false representations that may be
made; and the ideal beings which we personify for certain
purposes, under the names of legislative and judiciary
power, will suffer no more injury, will no more be brought
into contempt by false and malicious accounts of their
proceedings, than the other power, which we call the
executive, and which it has never been thought proper to
protect, independent of the persons who exercise it, by
any law of libel. If, then, there be any inconvenience in
permitting the widest possible range to the right of verbal
or written discussion of public measures, it is one of inconsiderable amount; but the evil of imposing the least
restraint is incalculable. Say that true representations
shall be allowed-who will, in order to inform the people,
risk any publication of the measures of their rulers? If
incorrect accounts of judicial proceedings are punishable,
who will venture on the task of a reporter? Publicity,
that great safeguard against corruption, will be destroyed:
public opinion, which, even in despotic governments, corrects abuses, will lose its force; and the law of libel, with
this extent, becomes one of the most powerful engines for
the overthrow of all free institutions.
But when any of the public functionaries, in either of
the great branches of government, are personally attacked
-when animadversions on public proceedings are made
the vehicle for injury to private character-then the law
protects them as it does any other individuals; and,
although there can be no libel against the government,
or the court, yet the legislator and the judges are not left
without the same redress that is given to their fellowcitizens. The limits of this report will not permit me to




THE CODE OF CRIMES AND PUNISHMENTS.      293
offer one-half of the reasons that present themselves to
justify the suppression of this species of libel from our
codes. The practical result however from them, observed
in the general and state governments, is instructive. In
most, if not in all of the states, libels against the government, and particularly against the judiciary branch of it,
are liable to prosecution. Under the general government,
since the repeal of the unconstitutional sedition law, they
are not.  Yet the tribunals of the United States, unprotected by any penalty, are certainly not less respected,
and perform their functions with as little interruption,
from the licentiousness of the press, as those of the state
governments.
In most cases, the connexion between cause and effect
exists between the subject of this chapter and that of a
subsequent one-of Duels. Defamation, either real or
supposed, is the cause of most of those combats which no
laws have yet been able to suppress.  If lawgivers had
originally condescended to pay some attention to the
passions and feelings of those for whom they were to
legislate, these appeals to arms would never have usurped
a power superior to the laws; but by affording no satisfaction for the wounded feelings of honour, they drove
individuals to avenge all wrongs of that description,
denied a place in the code of criminal law.  Insults
formed a title in that of honour, which claimed exclusive
jurisdiction of this offence. It is too late, perhaps, to
eradicate; but we may probably, by prudent provisions,
lessen the evil. With this view, some have been introduced into this chapter; all of which are new in our
criminal jurisprudence.  By one, the court may, if the
circumstances of the case render it proper, direct that
the whole or any part of the punishment may be remitted,
on the defendant's making such apology, or after-amends,
as the court shall deem sufficient to the injured party.
By another, where the jury find that the accused spoke
the words, or made or published the libel, and that the
charge is false, they are required specially to state that
the charge is false and unfounded, and the court may, on




294            INTRODUCTORY REPORT TO
the demand of the prosecutor, cause such declaration to
be published at the expense of the defendant. Lastly, if
the defendant shall avow himself to have been the speaker
of the words, or the author of the libel, and acknowledge
that the charge they import is unfounded, or, in cases
where there is any ambiguity, that the charge was not
intended to apply to the prosecutor, the punishment
shall be confined to the payment of costs and the publication of proceedings.  These several provisions, by
extending the legal remedy over part of the ground now
exclusively occupied by the principle of honour, it is
thought, may, in conjunction with the special enactments
in the chapter of duels, have a tendency to check that
absurd and fatal practice.
No words should be punishable, unless they are used
with intent to injure, or are such as, whatever may be
the real intent of the party, naturally have that tendency.
But even to this there must be further restrictions, such
as charges necessarily made in the prosecution of a public
duty, either as a legislator, judge, advocate, or witness,
and confidentially by way of advice, or called for in selfdefence. These and other exceptions are specially declared in the code, and they are generally taken from
those English decisions which have been considered as
the most consonant to the dictates of reason. A variance,
however, from that law will be found in making defamation, by words spoken, as much an offence as if they were
written. By the English law, although these give a right
of private action, yet be they ever so malicious and
injurious, be the charge which they employ ever so
atrocious, they cannot be punished as an offence. For
this difference it was supposed no substantial reason
could be given, and it was believed also that it would
lead to other serious inconveniences.  The satisfaction
by private suit must necessarily be of a pecuniary nature.
Men, therefore, who think highly of reputation are
unwilling to have theirs appreciated by that standard.
They will, then, either suffer the injury to go unpunished,
or they will in this, as in most other cases where no




THE CODE OF CRIMES AND PUNISHMENTS.    295
remedy, or an inadequate one, is provided, take the law
into their own hands; and it is no improbable conjecture,
that a very great proportion of the many breaches of the
peace, and deaths by duels, which originate in verbal
provocation, might have been avoided, had an adequate
satisfaction been provided by law. This distinction, however, is established, that while no action can be sustained
for words spoken, unless they are false; yet, when they
are deliberately written and published, with a view to
injure the character, they are punishable, although they
are true, unless they were used from some motive of
public good or private duty. This distinction has received
the sanction of the highest legal authority, and has been
practised under in one or more of the states without any
inconvenience. It is a correction of our present law,
which forbids the truth to be given in evidence in any
case of libel. If the truth were a justification in no case,
one-half of the utility of the press would be destroyed.
The misconduct and incapacity of those already in office,
and the want of talent or character of the candidate,
would be protected from exposure. If it were a justification in every case, the wanton and malicious exposure of
foibles, misfortunes, or defects, might, with impunity,
make the life of an individual miserable, while the
anonymous author remained unknown; and would not,
as in the case of the same words spoken, be restrained
by the fear of personal vengeance.
The second chapter of this title provides a punishment
for an offence, frequent in times of political excitement,
the hanging or burning an obnoxious person in effigy, the
relic of a barbarous state of society, and the proof of a
ferocious disposition, fostered by these riotous proceedings, and which, unless restrained by the laws, would
realize the cruel indignities of which they are the symbol.
Combinations to destroy reputation by false accusations;
and threats of making them for the purpose of extorting
money, are the subject of the third chapter of this title.
The fourth, which concludes it, relates to a mode of
injuring reputation not unfrequently resorted to by the




296           INTRODUCTORY REPORT TO
ingenuity of malice, by publishing false writings in the
name of another, tending to bring him into ridicule or
contempt.  The happiness of individuals, the quiet of
families, and the peace of society, depend so much on the
protection given by the laws to reputation, that this title
is more minute in its provisions than many of the others.
The innovations that have been introduced, it is believed,
will be justified by a close examination of their tendency,
and that no parts of the present law on the subject have
been omitted or changed, but such as can be justified b;y
the most cogent reasons.
We now come to the important title of Offences affecting the Person. And, before we examine the several
acts which are made punishable under this head, it may
be necessary to remark, that, instead of beginning, as is
usually done, with offences of the highest degree in this
class and then descending to the lowest, the order in
this code is reversed, and the ascending scale has been
adopted, for reasons which are not those of mere arbitrary
arrangement. By beginning with the lowest injury that
can be offered to the person, an assault, you lay the
foundation for comprehending the definitions and descriptions of all the others, which are only aggravations,
either in degree or by intent; and having defined all the
intermediate degrees between it and murder, you arrive
at the simple conclusion that every homicide which is
not included in any of the preceding classes of crimes, is
murder: whereas, by beginning, as is usually done, at
the other end of the scale, you must explain all the lower
degrees which are included in that with which you begin,
or your definition will not be understood. For example:
if we begin with murder, we can only cause it to be
comprehended by saying that it is homicide. We must
then anticipate, by defining homicide; and when we
come to the circumstances and intent which distinguish
murder from  other homicides that are justifiable or
excusable, or criminal in a less degree, we must travel on
untrodden ground, which we must pass over again when
we come to speak of these other kinds of homicide. But




THE CODE OF CRIMES AND PUNISHMENTS.    297
by advancing regularly, we clear the way as we go; and
by getting a definite idea of the several kinds of homicide, ascending through the different degrees, from the
slightest to the highest guilt, our march is uniform; each
definition is the foundation for that which succeeds, until
we come to the last; and we may form a clear conception
of the crime of murder, by calling it such homicide as
does not fall within any of the preceding classes.
With this notice of the mode of classing the offences
against the person, the very few observations that will be
made on the details of this title will be readily understood.
Assault-the lowest injury of this kind-and battery,
which usually accompanies it, do not materially vary in
their definitions from those contained in the English law;
but the chapter, among other details, contains a minute
enumeration of all the circumstances which will justify or
excuse violence offered to the person, a matter on which
it is of the highest importance that the law should be not
only explicit, but well understood, by every individual in
society. Where the same act may be indifferent, or a
duty, or a crime, that legislation is surely imperfect
which leaves anything to conjecture on such important
points. Yet, however rich our present law may be in
the number of decisions to elucidate this branch of personal duty, it is most wofully deficient in that order,
selection, and publicity from which the people can learn
its will. The code purports to remedy this evil; to give
to the most prominent and best founded of these decisions the force of positive law; to give arrangement and
order to the principles on which they are founded, and
enable the citizen to know what species of violence he
may resist, and in what degree; to what he is bound to
submit; in what cases and in what degree he is, in his
turn, justified in exercising it; and to trace precisely the
line which he cannot pass without incurring the penalties
of the law. The different sections of this chapter mark,
with a precision which it is hoped will prove sufficient,
the aggravations of this offence, arising from person, place,
intent and degree.




298            INTRODUCTORY REPORT TO
Illegal imprisonment forms the subject of the second
chapter. The first section contains the detail of the
different modes by which the detention, constituting this
offence, may be effected, whether by assault, by actual
violence, by threats, or by some natural obstacle opposed
to the power of locomotion. Each of these are developed and illustrated; and the cases in which detention
of the person of another may be justified are set forth in
the text.  A  subsequent section, as in the cases of
assault and battery, specifies the aggravation of the
offence caused by the purpose or degree; and that
species of illegal restraint of liberty, applicable only to
the female sex, known by the name of abduction, is provided for and defined in the concluding section of this
chapter.
The next chapter relates to an offence of the most
heinous nature, whether we consider its effects on the
sufferer or those with whom she may be connected.
Whenever it occurs, the best feelings of our nature are
roused against the brutal and ferocious perpetrator, and
the detestation in which the ravisher is held, has almost
universally induced legislators to increase the severity of
the punishment, without considering that his chance of
impunity increases in the same ratio. By our present
law it is one of the few crimes punished with death. In
addition to the general reasons for substituting a milder
remedy, which apply to other cases, there is one which
makes it peculiarly necessary in this. It is a crime in
which conviction, from its nature, must for the most part
depend on the testimony of a single witness; the odium
attaching to its perpetrator generally supplying the deficiency of other proof. It is, of all accusations, therefore,
that one in which the innocent have most to fear, and in
which an irremediable punishment ought most to be
avoided. But though the delinquent ought always to
be kept within the reach of the pardoning power, his
punishment should not be light: it is imprisonment for
life. Some innovation is introduced in the definition of
this crime. MWhen the object is attained by fraud, the




THE CODE OF CRIMES AND PUNISHMENTS.      299
consent, though apparently given, is as much wanting, in
reality, as when violence is applied. Two cases, in which
such fraud shall be equivalent in guilt to force, are
specified: where it is obtained by the administration of
soporific or other drugs, and where the perpetrator
personates the husband of the sufferer. The other provisions of this chapter are generally accordant with the
present law.
The destruction of human life, in its inchoate state,
does not come within the definition of homicide. It,
therefore, requires a special provision. This is made in
the fourth chapter of this title. Whether the object be
effected by external violence, or the administration of
drugs internally, and whether with or without the consent of the woman, the crime is committed; the punishment is increased if the delinquent be a physician or
surgeon; and if death is caused by the attempt, it is
murder.  Exceptions, however, are made of the case
where the effect is produced by medical advice, with the
intent of saving the life of the mother.
A great personal injury may be sustained by the
swallowing or inhaling of deleterious substances.  If
these are maliciously administered, it constitutes a crime
which forms the subject of the fifth chapter of this title,
in which the punishment is graduated according to the
intent and effect of the offence.
We come now to the consideration of the important
title of Homicide. The first section of this chapter lays
the foundation for all the others, by the definition of this
act, and illustrations and explanations to remove every
doubt as to the force of the different words used in such
definition. The three great divisions used in our present
law are retained, and homicide is considered, in the subsequent sections, as justifiable, excusable, or culpable.
All of these are defined, explained, and illustrated. The
rules by which they are to be distinguished are clearly
laid down, and the exceptions specially noted. Homicide
is justified, by the requisition of law, in cases where
death is legally inflicted as a punishment, or where




300           INTRODUCTORY REPORT TO
it occurs in resisting an enemy in the usual mode of
warfare, excluding poisoning and assassination, which
terms are defined in the text. It is also permitted, and
therefore justifiable, in the performance of other duties to
the state. The first of these is the execution of the
lawful orders of magistrates or courts. This general
principle is in conformity with our existing law; but
there is no part of it in which accessible and clearly
intelligible rules are more wanted for the government
of the citizens. They are called on by the first duties to
the state to obey the orders of the magistrate, if they are
legal; if they are illegal, they expose themselves to the
highest penalties of the law. One mode of executing
the order entitles the citizen who performs the duty to
the highest praise, and the other subjects him to capital
punishment. What, in one man, in relation to his condition or offence, is a duty, in another is a crime; and
yet the rules by which we are to be guided through
these narrow, winding paths, bordered by snares and
precipices, in which a false step entangles us in ruin or
sinks us to destruction; these rules are not to be found
in the positive enactment of our law. A few general
principles are laid down by elementary writers; numerous
and sometimes contradictory practical deductions are
made by decisions in particular cases; and the magistrate and the officer, as well as the citizen who is to aid
them, are left at their peril to discover the law in the
different volumes in which it is contained, and to reconcile the contradictory opinions and decisions of which it
is composed.'This defect in legislation is an obvious and
fatal one.  If the rules cannot be ascertained until the
case arises, then no one ought to suffer for contravening
them, for they are no rules. It is a solecism to call them
such. If they can be established, it is a cruel and a
wicked omission to neglect it. It is a tyranny to establish and not promulgate them. But rules laid down in
books, which, from their language, their expense, or
other circumstances, are not accessible, although they
may be printed and published, are not promulgated.




THE CODE OF CRIMES AND PUNISHMENTS.    301
The conclusion from these premises is irresistible, easily
drawn, and nowise honourable to the state of our criminal
jurisprudence.
An attempt is made to remedy this evil in the proposed code. Several subdivisions of this section contain,
in order, first, the rules as to the order itself which is to
be executed, and the magistrate from whom it emanates;
and, secondly, those which regard the person executing
it, and the manner in which the duty is to be performed.
To review these would be to repeat the provisions of the
code, which is the less necessary as most of them are
founded on principles established by the best decisions
under our present law.
The next duty to the state, in the performance of
which homicide may be justified, as analogous to the
former, is that which arises from the opposition to rebellion, insurrection, and riot.  Here again the same
importance of regulation is preserved; and in this part
of the code, in which the principles are laid down, as
well as in the Code of Procedure, will be found all
that is necessary to guide the magistrate in giving, and
those whose duty it is in executing his orders on the
important subjects of arrests, self-defence, and the suppression of breaches of the peace.
But we have a duty to perform, not only to the state,
in obedience to the lawful orders of its magistracy, and
in resistance to its foreign and domestic enemies; there
is also anotL4er, which we owe to our families and ourselves, in the necessary defence of person or property.
Here again we find the same deficiency in our existing
law, that has been pointed out in the beginning of the
review of this chapter; and here again that deficiency is
attempted to be supplied by the establishment of minute
but intelligible and distinct rules, to designate what
resistance may be offered to aggression, and to limit its
extent both in nature and degree; and with this ends the
division of justifiable homicide.
The designation of that which is excusable is contained in a single and a short section.  The leading




302           INTRODUCTORY REPORT TO
distinction between this division and that which preceded it is, that the homicides described in the first were
voluntary, but are permitted on some principle of public
good or private right; but in this are involuntary, but
unavoidable by common prudence or care.  Thus far,
from the very definition of an offence, none of the acts
coming within the purview of these sections can be
denominated such. The next section, however, describes
those acts of homicide which assume that character.
When we inquire whether any particular act is an
offence, this mode of classification gives us, in jurisprudence, the advantage of an operation something like the
arithmetical one of proving one rule by another. To
show a given act of homicide to be an offence, it must
not only be brought within the definition of one of the
acts of that nature which are designated as culpable, but
it must be excluded from those which it is declared may
be justified or excused. The eighth, and last, section of
this chapter treats of these culpable homicides, and each
of its six subdivisions contains the description of one of
these offences, which, beginning with the lowest degree,
where no culpable intention can be attributed to the
offender, rise to murder in its appalling forms of assassination and parricide.
Those who are satisfied with the provisions of the
English law, which knows only two degrees of culpable
homicide, must be startled by the number indicated in
this chapter. But it is hoped, and believed, that a little
attention to the subject will show the necessity of
making them. By our present, which is the English
law, all culpable homicide is either manslaughter or
murder.  The first description embraces two kinds of
offences that are evidently very different in degree. It
confounds voluntary and involuntary homicide in the
same name, and applies to both the same punishment.
The destruction of human life by want of care, even
without any design to do the smallest mischief, is certainly reprehensible; but surely, a wise lawgiver would
not say that it was tile same offence with that of de



THE CODE OF CRIMES AND PUNISHIMENTS.   303
signedly inflicting death, under the influence of passion,
although that passion had adequate cause in a violent
provocation; nor would he identify with these death
caused by negligence in the doing of an unlawful act not
amounting to a crime.  Yet, all this is done by our
present jurisprudence; and this, with some other defects,
are endeavoured to be remedied by the system which it
is proposed to substitute.
The preceding sections having taught us what homicides were justified, permitted, or excused, those described
in the one we are now reviewing need no other definition than that they are such as cannot be brought within
any of the preceding classes; or, in other words, that
those come within the description of culpable homicides
which cannot, according to the preceding provisions, be
justified or excused. Next comes the designation of the
different degrees of culpability. Here the first great distinction, between negligence and design, is marked, and
culpable homicides are divided into negligent and voluntary. But as different degrees of negligence mark a
greater or less attention to the value of human life, and
as extreme provocation, or the want of any, shows a
greater or less degree of malignity in the voluntary infliction of death, so each of these require subdivisions, in
order to designate the degree of guilt, and assign its correspondent punishment.
The first and lowest degree of negligent homicide is one
that differs but little in its circumstances from excusable
homicide; but as it does differ, it must be an offence. It
is defined as homicide involuntarily inflicted in the performance of a lawful act, in which there is no apparent
risk of life, by ordinary means; but without that care and
precaution which a prudent man would take to avoid the
risk of destroying human life. It will be best understood
by a perusal of this division of the section. But it may
here be generally comprehended by repeating one of the
examples by which it is there illustrated. " When death
is casually inflicted by discharging fire-arms which are
believed not to be loaded, without examining whether




304           INTRODUCTORY REPORT TO
they are so or not, it constitutes this offence. If the
examination be made, and owing to some unknown cause,
although loaded, they appear to be empty; or, if unknown
to the person using them, they have been loaded immediately after the examination, due caution has been used,
and there is no offence." A very slight punishment is
annexed to this offence, and I doubted long whether, as
the definition assumes the absence of any intent to injure,
the horror and grief naturally caused by so fatal a consequence would not, in itself, be a sufficient punishment for
the negligence; that these sensations must inflict a suffering much more severe than any the law could with justice
award, cannot be questioned. But, after much hesitation,
I concluded, that this consideration would not justify me
in omitting to place so fatal an act of negligence in the
class of offences. It would induce us totally to excuse
all negligent and even many voluntary homicides. The
depravity that can conquer those feelings of remorse and
mental anguish, with which nature avenges the destruction of human life, is not suddenly, easily, or frequently
attained. He who, yielding to sudden passion, takes the
life of an adversary who has provoked him, feels the
operation of this internal engine of punishment as keenly
as he does who is the negligent or even the casual instrument of a similar event. Nor is even the deliberate
murderer exempt; and the poets who have painted the
most closely from nature have always truly represented
the subsequent remorse to augment in proportion to the
previous atrocity of the murder. Richard is haunted by
the ghosts of his victims. Macbeth exclaims, " I scarce
can think on what I've done-look on it again, I dare
not;" and the reason of his tiger-hearted instigator and
accomplice reels under the weight of her remorse. Indeed, of the two, the homicide from sudden passion may
reasonably be supposed to be endowed with keener
sensations, and therefore more sensibly to feel the pang
of remorse, than he does who has shown so much indifference to the life of a human being as not to take the
proper precautions for its preservation.




THE CODE Of CRIMIES AND PUNISHMENTS.         305
Besides, the frequency of these accidents, as they are
incorrectly called, seemed to demand some interposition
of the law. At present they are considered and classed
as excusable. But when they shall be stigmatized as
offences; when the voice of the law shall direct the
exercise of that circumspection which prudence now in
vain commands, it is believed that greater caution will be
the result; and instances are not wanting to show, that a
positive inhibition, accompanied by the fear of a comparatively slight punishment, has prevented men from incurring risks and rushing on dangers of the most serious
nature (a).
The next offence is negligent homicide in the second
degree. It differs friom the former only in the greater
want of caution.  It is defined as that which is involuntarily committed in the performance of a lawful act, but
under circumstances, in a manner, or by means, which
cause an apparent danger of inflicting death, without due
precaution to avoid such danger.  Every word of this
definition that could, by the most forced construction,
carry any more than one meaning, is carefully explained
in the text; and the whole is illustrated by examples, of
the crime generally; of the circumstances; of the apparent risk, as applied to the manner of doing the act,
and to the means used.  For all these reference is made
to the text. As this is a comprehensive division, much
greater latitude of discretion is given to the judge, in the
apportionment of the punishment, than is usual in other
parts of the code.
The concluding division under this head, of negligent
homicides, relates to such offences, of this nature, as are
committed in the performance of other unlawful acts. This
(a) A traveller in Prussia,'during the reign of Frederick, has told us,
that the cavalry reviews of that great disciplinarian were, at one time,
very much embarrassed by the dragoons frequently falling from their
horses, whereby many of them had their bones broken or were trampled
to death. A general order made a fall punishable with thirty-nine
stripes; after which it was found that their horsemanship was so much
improved, that falls became very rare;
U




306           INTRODUCTORY REPORT TO
is only to be remarked inasmuch as it graduates the penalty,
according to the nature of the illegal act, in the performance of which the homicide was negligently committed.
We now come to the class of Culpable lHomicides that
are voluntary.
Still pursuing the same plan, of making the preceding
definitions a key to those which follow, voluntary homicide is declared to be a crime in all cases where it cannot
be justified or excused by any of the rules before laid
down. It comprises two divisions only, manslaughter
and murder. These denominations are retained from our
present law; but the first, being stripped of the whole
class of negligent homicides, nothing remains for it but
those acts by which the life of another is taken by one
who is under the influence of a sudden passion-a crime
so different from that which produces the same fatal
effect, after deliberation, as to call for a different name,
and to merit a milder punishment.  But it is still a
crime; one difficult, under certain circumstances, to distinguish from murder; as fatal in its consummation, but
drawing the distinction made in its favour by the law
from two circumstances: some indulgence to the infirmity
of our nature, when passion is excited by an adequate
cause, and some reprehension for the injury that pros
voked the passion. The difficulty of drawing the line
that separates this crime from the heinous one of murder,
the high importance that it should be distinctly drawn,
were felt in framing the provisions of this section. The
numerous cases in the English law on this subject were
studied, and all those principles drawn from them which
could give precision to the rules that are laid down.
Yet, after all that has or can be done to give precise
limits to the definitions of crimes, which depend so much
as this does on the ever-varying, and, for the most part,
the inscrutable workings of the perpetrator's mind, much
must be left to the discernment of the judge. But,
although we cannot do all, it is our duty to do that which
is practicable, and, in cases of this high importance, to
leave as little as possible to discretion.




THE CODE OF CRIMES AND PUNISHMENTS.      307
Manslaughter, then, is defined to be homicide committed voluntarily, under the immediate influence of
sudden passion, arising from an adequate cause; and it is
provided, that all the terms used in the definition are to
be strictly construed in applying it to any particular act.
Each of these terms is commented upon in the law.
General rules are prescribed for deciding what species of
injury shall, and what shall not, be deemed an adequate
cause for the passion that causes the act; and it is supposed that the intention of the law on this important
point, is so clearly expressed, as to leave to the jury only
the task of deciding, in each case, whether the acts and
intentions of the party bring him within its purview.
Having defined, described, and illustrated by examples,
and confined within precise rules, all the other species of
homicide, we are now to consider the last and highest
description of this crime-murder. The particular attention of the legislature is called to the definition of this
crime in the new code, and it is earnestly desired that
every word of it may be weighed, and that it may be
contrasted with the description of it given by our present
law, and that the one may be sanctioned which is the
most clear and explicit, and which requires- the least reference to other sources for understanding it. By the
code it is thus described: "Murder is homicide, inflicted
with a premeditated design, unaccompanied by any of the
circumstances which, according to the previous provisions
of this chapter, do not justify, excuse, or bring it within
some one of the descriptions of homicide hereinbefore defined." This description was, as the projected code was
first printed, contained in two articles. The sense was
precisely the same, but the amendment consolidated and
made it more concise, and was therefore preferred. If, then,
a clear idea in the preceding parts of this chapter has been
given of the other descriptions of homicide, there can be
no difficulty in forming one of this,'that is not liable to
error.  An act of homicide occurs. Did the circumstances justify it?  Did they excuse it?  Does it come
within any of the descriptions of negligent homicide? Is




308            INTRODUCTORY REPORT TO
it manslaughter?  If either of these questions. be
answered in the affirmative, it cannot be murder.  The
advantage of this mode of description over that of a
simple definition is evident; for should any words, contained in that definition, be liable to misconstruction, an
act, properly coming within the lower degree of that
offence, might be brought within the definition of the
higher. The act of taking human life is the same in all.
The attention should, therefore, if we mean to avoid
error, be drawn to all the circumstances that would bring
the act into a lower degree of offence, before we inflict on
it the punishment due to the highest; and the law should
be so framed as to oblige those who administer it to make
this examination.  By the new code, no jury can convict
-no judge can condemn for murder, until they have
carefully examined all the lighter shades of homicide, and
are convinced that the circumstances of the case do not
bring the accused within any of them. The form of the
law imposes this obligation. It cannot be dispensed with;
for there is no other description of the crime of murder
than that it is homicide that is not one of those before
described. Now take the English description of the same
crime, and see whether the same result is produced.
Coke's description of the crime is the one most generally
sanctioned by decisions and commentators. It is this:
"when a person of sound memory and discretion unlawfully killeth any reasonable creature, in being, and under
the king's peace, with malice aforethought, either express or implied" (a). Now suppose a jury empannelled
to try an indictment for murder, and after the circumstances of the case have been detailed by the evidence,
this description is read to them, and they are directed by
the court, under the sanction of their oaths, to apply it to
the case. There is scarcely a word in it that, to a conscientious man, will not afford matter for serious doubt.
The perpetrator must have been of sound memory and
tznderstanding.  What a scope does this give for equivo(0) 3 Inst. 87;




THE CODE OF CRIMES AND PUNISHMENTS.    309
cation! What a field does it open for inquiry! What
has the soundness of memory to do with the act? Be
the faculty ever so imperfect, how does it affect the guilt?
And as to discretion, if a sound discretion were necessary
to constitute guilt, no one could be guilty; for surely he
commits the highest indiscretion who takes the life of
another, and exposes his own to consequences of detection
and punishment.  The killing must be also unlamful.
Here we have one of the features of the description contained in the code, but without the faculty which it affords
of determining, by a reference to a few preceding pages,
whether the killing be lawful. The person killed, to constitute the crime, must be a reasonable creature. Neither
a newborn infant, nor an idiot, nor a madman, nor one
suffering in the delirium of a fever, or stupified by opium
or liquor, comes within this part of this description
according to the plain meaning of the words. Again,
who is in the king's peace? What is vmalice aforethought?
Is there any malice that is after thought? What is
express malice?  When shall it be implied? Thus we
find that there is scarcely a word in the description of a
crime so important to be known, that will not raise at
least a doubt in the mind of a man of common understanding; and it would be difficult, perhaps, to prove any
description of the crime, which would sufficiently give us
to understand its precise meaning, without a reference to
the definitions of those homicides which were not included
in it. I am certainly aware that most of these terms
have been expounded by commentators and illustrated by
decisions, and that a recourse to these sources of information would teach us what construction the best lawyers
and judges have put upon them; but still the evil recurs.
There is no source to which we can look for the absolute
certainty on which the conscience of a juror ought to rest,
who is sworn to decide, and the definition given to him
as the text of the law: he has a right to pat the construction which his understanding adopts, upon the doubtful
words; and there are cases, too, in which the expositors
to whom he is directed, are not themselves agreed, more




310           INTRODUCTORY REPORT TO
particularly in what respects the construction of malice,
express or implied-the great pivot on which this definition turns-and one of which it is so difficult to form a
definite idea, that I have purposely excluded it from the
description of this offence in the code.
I may be deceived, but if I am not more so on this
than on any other provision in the work, the law on the
subject of homicides, in their various grades, from innocence up to the deepest guilt, is rendered by the code
more clear, more consonant to reason, and more susceptible of easy execution, than it is as it now stands.
Our present law knows but one grade of murder. Yet
there are evident aggravations which ought to be marked
by a discreet legislature. Four have been adopted in
the code that is presented to you.
INFANTICIDE, the first grade above that of common
murder, is distinguished by its disregard, not only to the
feelings of humanity, but of nature; but, on the other
hand, its atrocity is so much lessened, by the deep and
powerful sense of shame which usually prompts it, that I
doubted some time whether it should form a separate
class. It, however, after due consideration, seemed
properly to occupy a place between that kind of voluntary and culpable homicide, committed under circumstances that would not reduce it strictly to manslaughter,
but caused by some provocation, yet distinguishing it
from the deeper guilt of ASSASSINATION, which is the next
grade.
This characteristic is applied to murderers, from considerations drawn from the purpose of the act, the means
by which it was accomplished, or the condition of the
person suffering by the crime. The purpose gives it this
name when it is committed in order to effect another
crime, or to conceal one previously committed, when its
object is to obtain an inheritance, or when a reward is
given and taken for its commission. The means characterize murder as assassination when it is perpetrated by
lying in wait, by arson, by poison. The condition of the
party murdered, and his actual situation, also raise the




THE CODE OF CRIMES AMD PUNISHMENTS.    311
guilt into that of assassination, under the following circumstances: when the sufferer is a woman; a man above
the age of seventy; a minor under the age of sixteen;
a person in a dwelling-house at night; asleep any where,
or travelling on the high-road. All these situations and
conditions imply helplessness and security. They add
cowardice and treachery to the guilt which invades them,
and therefore rank it in this grade of crime.
But if these cases of implied security and protection
demand the severe animadversion of the law, in a much
higher degree does that of express trust and confidence,
and positive treachery. I have, therefore, incorporated
as a third class of aggravated murder that known to the
Scottish law by the express name of MURDER UNDER TRUST,
and have described it as "that which is committed by
persons standing in the following relation to the party
murdered, that is to say: husband, wife, tutor or curator,
ward, collateral relations within the second degree inclusive, master, servant, schoolmaster, host, guest, physician
or surgeon; and finally, if the murder be committed by
one upon another who has reposed confidence of safety in
him, on an express or implied promise of fidelity or protection. Murder committed by a guide or conductor on
the land, or by the master of a vessel by water, upon a
traveller whom he has undertaken to conduct, are examples of this last description of murder under trust."
The code, in this as in other cases, contains articles
explanatory of all the words used that might be understood in more than one sense.
PARRICIDE is the last species of murder. The English
law, while it punishes the murder of a master by a servant, as a species of treason, expresses by no mark of
particular abhorrence that of a father by his son. Solon,
it is said, thought it too atrocious to be supposed possible,
and therefore omitted the mention of it in his code.
Modern times afford too many proofs of its recurrence
to justify the same expressive silence with  respect
to it.
The punishment for murder, unaggravated by any of




312            INTRODUCTORY REPORT TO
the circumstances which bring it within either of the
denominations above mentioned, is imprisonment for life.
The Code of Prison Discipline contains the increased
privations and aggravations of punishment that are
applied to higher degrees of this crime.
Suicide does not enter into the catalogue of offences,
for the reasons offered in the Report on the Plan of a
Penal Code (a); but a penalty is provided to operate upon
those who aid the unhappy sufferer in committing this
act of desperation, or who, having the power, do not
prevent its execution.
This title could not conclude without a chapter in relation to duels; that practice which, in modern times,
seems to have proved how inefficient are all laws when
opposed to public opinion, and to what degree the fear of
shame will prevail over that of punishment.
In the whole scope of criminal legislation there is no
subject which presents greater difficulties. Severe penalties have been denounced against it in vain; and it is the
more difficult to be eradicated, because it prevails most
where courage, a fear of disgrace, and a sense of personal
dignity, are most perfect.
One cause of this disorder in society has been anticipated in that part of this report which treats of injuries
to reputation. Where the law gives no such relief as
ought to satisfy those who conceive themselves disgraced
by imputations on their honour or integrity, as long as
honour and integrity are necessary to happiness in
society, human passions will endeavour to supply the
deficiencies of the law. But the law, as it now stands,
gives a partial remedy in those cases of defamation only
which imply a want of integrity or impute the commission of a gross crime; and we accordingly find that
redress is sought by an application to the laws for
injuries of that nature more frequently than by appeals
to arms; while the charge of mendacity, or of a deficiency in the courtesies of life, are more frequent causes
(a) See page 26.




THE CODE OF CRIMES AND PUNISHMENTS.      313
of duels than imputations of serious crimes. Why is
this? It is because the law gives some relief in the one
case-none in the other. One part of the remedy provided by the code is suggested by this consideration.
The other is drawn from the motive that leads to the
offence: this is, in most cases, a desire to possess that
degree of standing in society which raises the possessor
in the esteem of his fellow-citizens, and gives him a right
to expect those distinctions and offices to which his
talents may entitle him.
If, then, we can procure an adequate remedy by law
for injuries to reputation, and make an exclusion from
office and. civil distinction the consequence of any attempt
to usurp the functions of the law: if, by proper penalties,
we give to those who reluctantly aid in encounters of
this nature a good pretext for refusing their co-operation, while we take away that which the law now affords
them, for refusing to give evidence aoainst their principals, we shall do much to lessen the frequency of this
practice, and, by giving a turn to public opinion, in time,
to extirpate it.
Beginning at the source of the evil, the first provision
of the chapter is to make it punishable to use insulting
words, or to make an assault with the intent either of
provoking a challenge or disgracing the party if lihe
should not give it; and in order that a prosecution, for
such an offence, may be made the means of producing an
honourable satisfaction, the next article provides, that if
the defendant shall make any denial, explanation, or acknowledgment, which, in the opinion of the court, ought
to satisfy the honour of the prosecutor, they shall direct
the same to be published, with their opinion, declaring it
to be satisfactory, and dismiss the defendant; and where
no such acknowledgment is made before judgment, it
shall, if given against the defendant, contain a clause
that it shall be void as to all but costs, in case the
defendant shall make such acknowledgment as shall be
satisfactory to the prosecutor; and in any prosecution
under this article, if the offence be a charge affecting the




314           INTRODUCTORY REPORT TO
honour or reputation of the person making the complaint, and the proof on the trial show such charge to
be unfounded, the court shall make that declaration in
the sentence, and cause it to be published at the expense
of the defendant, and the truth of such charge shall, if
the prosecutor desire it, be tried by the jury.
These provisions are entirely new. They give, what
the law has hitherto denied, satisfaction for those species
of insults which most commonly lead to duels, and satisfaction of a species that the most chivalrous need not
blush to seek or to receive; and insomuch, they are
calculated to prevent those fatal encounters which few, if
any, of those who engage in them, would not avoid, if
any other mode were provided by which they could escape
disgrace.  If, however, the parties refuse this remedy
for their wrongs, and give or accept a challenge to fight
a duel, although it should not take place, the penalty is
imprisonment in close custody from two to six months,
and a suspension of political rights for four years; if
the duel take place, the penalty is increased by a longer
period of imprisonment, and a protracted suspension of
rights both civil and political, in proportion to the injury
resulting from such conflict; if it result in death, the
imprisonment is extended to four years; and all political
rights, and the civil rights of the first and third class, are
forfeited for ever. If the wound which produces death
is inflicted by treachery, it is declared to be murder by
assassination. The treachery intended by this provision
is defined to be the breach of any rules made for conducting the combat, or by taking any other advantage
that could not be supposed to have been intended to be
given; and whatever may have been the rules agreed
upon, it is declared to be assassination, if the mortal
wound be given after the party is disarmed, or otherwise incapable of resistance; or, if the party inflicting
the mortal wound have obtained the power of doing it
without risk to himself, by the effect of a chance previously agreed upon. These two last provisions are intended to put an end to a ferocious practice sometimes




THE CODE OF CRIMES AND PUNISHMENTS.    315
resorted to in duels; which it is thought may be done,
as much by stigmatizing them by the designation oftreachery and assassination, as by the severe punishment
assigned to them, which punishment there will, in such
cases, be no disposition in the prejudices of jurors to
avoid inflicting. However imperative we may make the
language of the law, it loses its force when it includes in
the same prohibition, by the same name, and under the
same penalty, acts different in their motives, circumstances and effects. We may, in our statutes, give the
name of murder to death occasioned by a duel; but the
world will not adopt the appellation; and a combat,
sanctioned by the irresistible command of public opinion,
and marked by no circumstances of peculiar malignity,
will never be considered, prosecuted or punished, as an
assassination. If you wish to have it punished at all,
it must be by its own name, and a proportionate punishmnent, nor must that be an infamous one. Put what is
called a fair duellist on a footing with a thief or a murderer, and you assure his impunity. Consign him to a
temporary, close, but not degrading imprisonment; take
away from him all hope of political preferment; and
seeing that his conviction and its consequences cannot
be escaped, he will gladly avail himself of the opportunity offered by the laws, of throwing off, without
disgrace, the tyranny of custom; for there is this peculiarity in the offence of which we now speak, that nine
times in ten it is most reluctantly committed by all who
are parties to it. Let the severe punishment, then, be
reserved for treachery and ferocity; inflict a mild penalty
on duels fairly conducted; punish the insults which lead
to them, and you will insure the execution of the law;
furnish a fair excuse for even the most high-minded to
avoid incurring the disadvantages which it creates, and
you will do more than has been yet done to abolish this
barbarous, unequal and unjust mode of settling private
quarrels.
If prosecuting officers had always used the same diligence in bringing duellists to justice that they have




316            INTRODUCTORY REPORT TO
shown in the case of other offenders against the laws,
although the accused might escape the severe penalties of
the law froml the lenity of jurors, yet the risk, inconvenience, solicitude and expense of the trial, would deter
many, particularly those who had aided as witnesses or
seconds; but there seems to be a general tacit consent,
on the part of the magistrates, attorneys for the state,
and grand jurors, that there is something dishonourable
in such prosecutions, and that they form an exception to
the oath of office, and are not to be prosecuted, unless on
the most direct application, and on producing the fullest
proof.  How else shall we account for the open, notorious, flagrant breaches of the law so frequently taking
place almost in the presence of the magistrate, the grand
jurors, and the prosecuting officer, without any instance
of prosecution. To remedy this evil, the code provides,
that the attorney-general and district attorneys shall
make a declaration on oath, and also make an honorary
declaration, that they consider the execution of laws
against duelling as forming no exception to their duty
of carrying the laws into effect; and that they will, by
all lawful means, prevent any intended duel which comes
to their knowledge, and prosecute all offences against
that part of the code.  Still further to prevent this
offence, no person elected or appointed to any office, civil
or military, judicial or executive, shall exercise the same,
unless he shall declare, on oath, that he has not and will
not commit any of the offences described in this chapter.
I was not unapprized when these provisions were recommended, that this expedient had been partially resorted
to in some of the states, and that it had not been
deemed a proper remedy.  But I apprehend that, in the
cases where it has appeared to fail, it was not fully or
fairly tried; and I have from the first authority that
in one state, at least, it had proved so nearly effectual as
to render duels extremely rare where they had formerly
prevailed to a most alarming degree. In a letter with
which I have been favoured by the chief-justice of the
United States, he says: "On the subject of duelling




THE CODE OF CRIMES AND PUNISHMENTS.    317
some contrariety of opinion prevails. I am among those
who think that the utmost wisdom is required, and ought
to be exerted, for its prevention.  Originating in a sense
of honour, the passion from which it springs must be
consulted, if we hope to suppress it. We must array
ambition against this false honour, as its only equal competitor in a young and ardent mind. The privation of
political rights which you propose is, I think, particularly
adapted to this offence. The efficacy, as in most other
cases, depends on the certainty that the law will be
executed. Were you to rely on public convictions alone,
this certainty would not exist.  Even where death
ensues, prosecutions will not always be instituted. When
it does not ensue, still more where the duel does not take
place, the whole affair will generally be overlooked; and
challenges will not be completely restrained. The oath
you require from every person appointed or elected to
any office whatever, before he can enter upon its duties,
is, I believe, the best, if not the only measure, which
human wisdom can devise. Its efficacy has been proved
in Virginia, where a similar oath is prescribed and has
been rigidly exacted. The consequence is that duelling,
formerly so common, is now scarcely known in this state,
and public opinion on the subject is very much changed."
This high authority, supported, as it always is, by irrefragable argument for the doctrines stamped with its
approbation, has confirmed me in the purpose of retaining in the code which is submitted to you the provisions
I have detailed. The same false sentiment of honour
which leads to a breach of the laws in committing this
offence, renders its punishment more difficult.  Witnesses avail themselves of the principle that they cannot
be compelled to justify anything that may inculpate
themselves; and, therefore, neither seconds, nor surgeons,
nor any others who were voluntarily present, can be
induced to testify; so that facts notorious to the world,
published in every newspaper, which must be known and
understood in order to exonerate the parties from the
foul crime of assassination, and which, therefore, they




318            INTRODUCTORY REPORT TO
cannot wish to keep secret, can rarely be proved before
a court of justice. In order to obviate this, in another
part of the system it is provided that those who have
served as seconds in a duel, or witnessed one as surgeons,
shall be forced to give testimony against the principals;
and that no person so examined shall be himself punishable for the offence.  This, together with the forfeiture
of political and civil rights incurred by the second, if he
be convicted, will make it extremely difficult for principals to obtain friends to attend them to the field; and
the dishonourable as well as dangerous suspicions that
must attach to the survivor, in a duel without witnesses,
will generally prove an insurmountable obstacle to such
encounters.
The frequency of this offence in our state, the many
valuable lives which have been sacrificed to this false
point of honour, the distress with which it has overwhelmed whole families, and the particular ferocity which
of late years the practice has assumed, all justify the
attention of the legislature, and call for its special interference; not in the shape of severe penalties; not by
denouncing punishments which are never inflicted: but
by preventive remedies; by mild laws, so framed as to
secure their execution; and by taking away, in most
cases, the pretext for private vengeance which was offered
by the deficiencies of public justice.
The twentieth title, "Of offences affecting individuals
in their profession or trade," contains only a reference
to other parts of the code, in which offences, under that
description, were necessarily noticed; it being found
impossible, without repetition, or anticipating on other
provisions, to arrange these under a separate head.
The condition of individuals, or that relation in which
nature and the institutions of society have placed them
with respect to each other, is the source of rights as well
as of other enjoyments which ought to be protected by
law. Our present laws afford this protection but imperfectly in sonie instances, and totally deny it in others.
The substitution of one infant for another at such a




THE CODE OF CRIMES AND PUNISHMENTS.    319
tender age as renders the exchange and the deceit practicable in the absence of the parent, the production of a
pretended child for the purpose of intercepting an inheritance, are not offences by our present law; yet the
jurisprudence of all nations gives us examples of these
deceptions. The destruction or falsification of registers
of births, marriages and deaths, for the purpose of
injuring the condition of another, is also made punishable by proper penalties.  The common practice of
exposing infants was thought to be not improperly
ranged under this head; for although it is certainly an
injury to the person, and as such might have been
classed in that division, yet the principal injury is that
offered to his condition, by causing him to lose the
advantages of the relation in which he would have been
placed as the child of his parents.
The conditions arising from the important relation of
husband and wife may be, affected in the most cruel and
injurious manner, by contracting a second marriage
during the existence of a former connexion of the same
kind. While the civil law pronounces the last marriage
void, the penal law cannot but add the sanction of a
heavy punishment to a fraudulent act, which disappoints
the hopes of domestic happiness, deprives the offspring
of the first union of a parent's care, and devotes those of
the second to unmerited reproach, and all the other evils
of illegitimacy. Our present law is not silent on this
last offence; but the statute wants precision, and one of
the exceptions would seem by its language to give the
means of evading its penalties without much difficulty;
for it declares they shall not attach to any one whose
husband or wife shall have absented him or herself fromi
the other for five years, "the one of them (that is, the
husband or wife) not knowing the other to be living
within that time." So that, if the offending can only
keep the injured party in ignorance of his existence for
five years, he may contract a second marriage with
impunity. Besides correcting this inaccuracy, by restricting the exception to the innocent party, the nine



320            INTRODUCTORY REPORT TO
teenth title contains many other articles to prevent the
evasion of the law, and to clear up doubts in a matter
so important to the peace of families and the good order
of society.
We have now come to the consideration of a class more
numerous and more difficult to repress than any in the
catalogue of offences: those affecting property; which
word is here used precisely in the sense given to it in
the Book of Definitions: that is to say, that it conveys
a compound idea, composed of that which is the subject
of property and the right to be exercised over it. In
relation to its object, property is either corporeal or incorporeal; and the right to be exercised over it is that of
possessing and using it with respect to that which is
corporeal, and of enforcing and transferring it with
respect to that which is incorporeal. Consequently, the
injuries treated of in this title, are acts which interfere
with the exercise of the right, which may be done either
by destroying or injuring the thing which is the object
of property, or by removing it from  the possession of
the owner, and appropriating it.  On this distinction is
founded the division of these offences, into malicious
injuries to property, and fraudulent appropriations of it.
1. In the former, the termi malicious is intended to
exclude negligent or unintentional injuries, which are
left, when the case requires it, to the operation of the
civil law.
The most common, as well as the most dangerous offence
of this nature, is that called arson by our present law,
which imposes the penalty of imprisonment for life on
the burning of certain enumerated buildings, and seven
years at hard labour for the burning of any other
building.  In the new code the severest punishment
for this offence is fourteen years' penitentiary imprisonment, and this is restricted to the burning of a dwellinghouse, a distinction between it and other buildings not
inhabited being obviously proper.  The destruction of
other buildings is made punishable by penalties proportioned to their value; and the chapter contains provisions




THE CODE OF CRIMES AND PUNISHMENTS.      321
for the protection of all property, real or personal,
against every species of malicious mischief.  All the
terms used are defined; the defect in our present law,
which punishes no other injury of this kind to property
but by burning, is supplied; and two articles are added
which provide for other important omissions; the one,
the malicious destruction of title-deeds or evidences of
property; the other, the removal or destruction of
landmarks.
A second chapter provides for a case analogous to
those mentioned in the one that precedes it. This is
the invasion of property by housebreaking, which is
defined to be the entry into a house secretly, or by force,
or threats, or fraud, during the night, or entry by day
and concealment until night, with the intent of committing a crime. As this is a distinct offence from that
of appropriating property after the house has been so
entered, and is completed by the entry itself with the
intent to commit any species of crime, whether against
person or property, it occupies a kind of middle ground
between malicious injury to property and the next division, a fraudulent appropriation of it.
2. In this division, it is believed that several valuable
improvements have been introduced, both in the arrangement and the manner. It is arranged under six heads,
and treated of in as many different sections.
The first is the fraudulent appropriation of personal
property, which had been delivered to the offender for
another purpose. This section, by several precise articles,
is calculated to avoid the uncertainty that has prevailed
with respect to constructive thefts, and by providing an
adequate punishment, which was totally wanting, for
fraudulent breaches of trust, to assign to each of these
offences its appropriate penalty and character.
The second section provides for a case that is now
either always confounded with theft, or considered as not
coming within the scope of any penal law. I mean the
fraudulent appropriation of property found. Whatever,
in strict morality, may be the character of such act, it is
X




322           INTRODUCTORY REPORT TO
clearly less in degree of guilt than theft; while, at the
same time, the injury to the owner, and the knowledge
which the finder must have that the property is not his,
ought to rank it as an offence, though one deserving a
lighter punishment.
A third section relates to the violation of epistolary
correspondence; an act not punishable by our present
law; but one which, whether we consider the want of
principle that must produce it, or the injury it is calculated to do, ought to be repressed by the sanction of the
law. The unauthorised opening and reading of a sealed
letter; the publication of such letter so improperly
opened; the taking of a letter from another without his
consent, whether sealed or not, and the malicious publication thereof, are severally declared to be offences, and
are made punishable by fine and imprisonment. The
sanctity of private correspondence, and of the confidential communications of friendship, have been too often
violated by party spirit or unprincipled treachery, in our
day, to require any argument to show why this section
has been deemed necessary.
The two next sections are of high importance in this
general division of offences; and the attention of the
legislature is particularly invited to their provisions.
They relate to two offences that are frequently confounded, but which are here endeavoured to be distinguished by definitions and rules which are minute, and
it is hoped, will be found to be intelligible and precise.
These offences are, the obtaining of property by false
pretences, and theft, properly so called. The uncertainty
of the English law on this subject was lamented by
Lord Hale; and the multiplicity of decisions, since his
time, have rather rendered it more obscure. That great
lawyer says: " It is the mind which maketh the taking
of another's goods to be felony or a bare trespass only;
but because the variety of circumstances is so great, and
the complication thereof so mingled, that it is impossible
to prescribe all the circumstances evidencing a felonious
intent, or the contrary, the same must be left to the due




THE CODE OF CRIMES AND PUNISHMENTS.     323
and attentive consideration of the judges and jury;
whence the best rule is, in doubtful matters, rather to
incline to acquittal than to conviction "(a). These doubtful matters alluded to in his lordship's opinion, might, it
was thought, be much diminished in number, and, of
course, the conviction of guilt and the acquittal of innocence rendered more certain, by adopting precise definitions, drawing practical deductions from them, and
elucidating the whole by examples. It has been my
endeavour to do this; with what success can only be
determined by a close examination of the text. Simple
theft being sufficiently described, and the danger of confounding it with other fraudulent appropriations of property avoided, the next consideration is the different
aggravations of which it is susceptible. These form the
subjects of the three following sections.
The first of these is theft by effraction. This differs
from the crime known by the name of burglary, by our
present law, in this, that it is committed by breaking
into a house by day, or by actually committing the theft
therein without breaking; whereas burglary can only be
committed by a nocturnal effraction, and is complete by
the intent of entering, in which it more resembles the
offence which has hereinbefore been described as housebreaking. Stealing by an entry, without effraction, is
punished by a mitigated penalty; but the crime and
the punishment are aggravated by the circumstances of
actual violence to any person who may resist the
offender, or of preventing such resistance by threats.
There is an error of the press in placing in this section
the two last articles, respecting wrecked property. They
properly belong to the section which treats of the fraudulent appropriation of property found.
The next aggravation is that of privately stealing from
the person, which I have been induced to place in a
separate grade of crime, principally from the consideration that it is one which cannot well be committed, to
(a) Hale's P. C., p. 509




324           INTRODUCTORY REPORT TO
any extent, without a dexterity acquired only by long
practice and instruction; and also from the difficulty of
guarding against the depredations of its exercise.
The last aggravated theft, which it has been deemed
proper to notice, is robbery, which is "theft committed
by fraudulently taking the property of another from his
person, or in his presence, with his knowledge and
against his will; whether it be taken by force, or delivered, or suffered to be taken through fear of some
illegal injury to person, property, or reputation, that is
threatened by the robber or his accomplice."
The description of these last two offences is so nearly
similar to those contained in the English law, as to require no elucidation; nor does any seem necessary for
that treated of in the concluding section, namely, receiving
property knowing it to be stolen. But, although the
English law has been made the ground-work of these and
other provisions, it is not meant to allege that the rules
of that jurisprudence have been strictly followed, except
where they have been found to coincide, as they for the
most part do, with those of justice.
The fourth chapter of this title defines an offence of no
unfrequent occurrence in England, and which, it was
thought, should be guarded against here; that of attempting to obtain property or other advantage by such threats,
either of injury to person, reputation or property, as do
not amount to robbery, according to the definition of that
offence contained in this code. The offence chiefly intended to be guarded against by this chapter, is that of
sending threatening messages or letters, either to obtain
property, or procure service, or merely to alarm.
The last chapter of this book contains a description of
offences which it was found impossible to bring within
any one division of the code, because it might affect as
well the person, the reputation, the property, or the profession or trade of individuals. To have treated conspiracy
as a separate offence, under each of these titles, would
but have led to a tiresome and useless repetition. It
was, therefore, determined to annex it to the whole as a




THE CODE OF CRIMES AND PUNISHMENTS.    325
concluding chapter. It is there defined as an agreement,
between two or more persons, to do any unlawful act, or
any of those acts designated in the law, which become, by
the combination, injurious to others. Those are further
explained to be, agreements to commit offences; to accuse
and prosecute falsely; to do certain enumerated injuries
that are not offences when done by an individual. The
object of the first two of these combinations needs no explanation. The offence is the act of combining to do
them. If the completion of the design were made necessary to constitute the offence, the evil would, in many
cases, be without remedy. The agreement between two
or more persons is an act which shows a settled design;
and is clearly distinguishable from an intent formed in
the mind of an individual, not only because of its being
more susceptible of proof, but also from the circumstances,
that, if the original design of the individual could be
made to appear, a change of purpose might have taken
place, of which no evidence could be given; whereas, a
combination between two or more must have been communicated by some outward acts, and the renunciation of
the project evidenced in the same way; both being susceptible of proof. A combination too, although discovered
before execution, is injurious, because it excites alarm in
the person who was the object of it, and a sense of danger
and suspicion in the whole community, which the most
determined but secret intention of an individual could
never do. The danger is also increased by the character
of the injury to be effected by these combinations; they
being, for the most part, such as individual malignity
alone could not accomplish. For these reasons agreements to do certain acts, although never carried into
execution, are, in this and other parts of the code, made
punishable as offences.
The third head under which conspiracy is made an
offence, although the act agreed to be done would not be
an offence, without such previous agreement, requires
more elucidation. Its object is to prevent combinations
injurious to trade, by raising or depressing wages. This




326          INTRODUCTORY REPORT TO
subject is one that has engaged some attention lately in
England, where the laws, as they now stand, prohibit
combinations among workmen for raising their wages, but
do not consider, as an offence, a similar agreement among
employers to lower them. To impose as few restraints as
possible upon the liberty of action, is undoubtedly a
sound rule, in that part of legislation which may operate
upon political economy; and therefore it might, on a
superficial view, seem that any regulation, as to the conduct of those concerned in manufactures and trade, in
relation to the price they may choose to put on their own
labour, or give for that of others, would be contrary to
this rule. But the law interposes here, not to impose a
restriction, but to prevent one from being imposed by an
incompetent authority. Every labourer has a right to
refuse his services, unless the price which he appreciates
them at, be that price ever so extravagant, be paid.
Every employer has the right to refuse the same service
unless the price be reduced to the sum he thinks it worth.
But whenever an agreement takes place among the class
of employers or labourers, for regulating these prices,
then such an agreement becomes, to the extent to which
it can be enforced, a law operating for the reduction or
advance of wages, and a law made by parties interested
in the imposition of it; and, therefore, necessarily unjust;
and which, if permitted, would be, in effect, a usurpation of
the powers of legislation, and an unwise and oppressive
exercise of them; for, although an agreement be only a
law to those who are parties to it, yet, when the object of
it is to affect the interest of others in a way in which they
would not be affected but for such agreement, it is in its
operation, although it may not be in its form, a law
operating, though not binding, upon those who are not
parties to, but objects of the agreement. Suppose a law
instead of an agreement, and that a statute should render
it unlawful in any employer to give more than a certain
price to his labourers, the effect upon this last class would
be precisely the same; yet such a law would be acknowledged to be one at variance with the principles of free




THE CODE OF CRIMES AND PUNISHMENTS.    327
exertion, free use of capital, and free competition. The
agreement, therefore, is hostile to these principles, and
ought not to be permitted. For these reasons the code,
in conformity with the English law, imposes a penalty
on any two or more persons conspiring to raise the price
of wages; but it adds to that provision one which is
wanting in the English statute, imposing a similar penalty
on a combination between employers to reduce the price
of labour. Without this the law would be partial and
unjust in its operation. Employers in any one branch of
manufacture, being, comparatively to the operators, few
in number, an agreement between them is more easily
made; more readily enforced among themselves; and,
while their wealth enables them to wait the effect of their
combination, the poverty of those against whom it is
directed obliges them soon to yield to the dictates of
their employers, be they ever so oppressive. This inequality in the effects of this offence, between these two
classes of men upon whom it reciprocally operates,
requires a correspondent difference in the punishment;
and it is, therefore, direct  that imprisonment shall
always be part of the sentence against employers for a
combination to lower the rate of wages, for this cogent
reason, that the highest limit which could be given to
the fine upon the labourer would be no punishment to
his wealthy employer who should be guilty of the same
offence. It is also provided, that an agreement to require
a longer time to labour in the day, or to decrease the
number of working hours, without altering the price,
shall be considered as a combination to lower or raise
the rate of wages; and if the agreement be to inflict any
injury on those who will not become parties to it, the
punishment is to be doubled. Other articles are contained in the text, calculated to explain and carry into
effect those which have been commented on, and to guard
against abuses in enforcing them.
The rapid view I have thought it necessary to take of
this important branch of the work committed to me is




328         INTRODUCTORY REPORT, ETC.
now finished.  Some comments and arguments that,
perhaps, ought to have formed a part of it, have been
doubtless omitted. They will readily be supplied by the
intelligence of the body to whom it is submitted; but I
much fear that the reproach of having unreasonably trespassed on their attention may have been more justly
incurred. Yet nothing has been advanced which was not
thought necessary to the elucidation of the great variety
of provisions contained in this code, and much was
designedly left to be supplied by reflection.




INTRODUCTORY REPORT
TO
THE CODE OF PROCEDURE.








INTRODUCTORY REPORT
To
THE CODE OF PROCEDURE.
I HAVE now the honour to present the second of those
codes which your law has directed me to prepare. The
legislature which passed that law, were aware that no
system would be complete without a Code of Procedure.
Expense, delay or uncertainty, in applying the best laws
for the prohibition of offences, would render those laws
useless or oppressive. Therefore, this division has been
considered of equal importance with any of the others, but
more extensive in its operation than either of them. The
party committing the offence and the individual injured,
rarely the whole community, are the only persons immediately affected by the commission and punishment of
a crime. But in the measures prescribed for preventing
or prosecuting them, every citizen, however unconnected
with the offence, may find himself involved. As a judge,
a magistrate, a civil or military officer, or even a private
citizen, every one is liable to become an active party in
the task of applying the law, after a breach of its provisions has taken place, in preventing the commission of a
crime, or in arresting the progress of such as are continuous
in their nature.  The rules which direct us in what
manner, under what circumstances, and to what extent
we may use force to protect our own persons and property,
or those of another, against unlawful violence, also belong
to this division of the law; so that its provisions are more
required for daily use than those of any other part of the
system; and it may, therefore, without impropriety,




332            INTRODUCTORY REPORT TO
be said, that a society, however excellent may be its laws
for defining crimes and affixing to them proper punishments, will, if the means of carrying them into effect are
expensive, dilatory and uncertain, be worse governed than
the community in which the Code of Crimes and Punishments is faulty, but where the rules for executing it, and
for preventing and arresting the progress of offences, are
easy, cheap, expeditious and just. More attention, therefore, has been paid to this branch of the subject than the
little importance, commonly attached to it, would seem to
warrant. None of the codes which have come within my
knowledge, either ancient or modern, except the French,
contain any separate body of laws directing the mode of
procedure, either for arrest, trial, punishment or prevention.
Our laws, as we have seen, are wofully defective in this
particular; giving for acts, which, by some laws, are
declared to be offences, no rule whatever; and for the
others, referring us to the English common law, unmodified by statute. The necessity, therefore, of a Code of
Procedure was much more urgent than that which existed
for a Code of Crimes and Punishments. The system
adopted in the prosecution of certain offences, by the
legislature, and in that of others by the courts, with the
modifications introduced by our statutes, is freed from
many of the abuses and oppressions to which criminal
prosecutions in England are liable: a public officer being
appointed to prosecute, the individual who has suffered by
the crime, is not, in addition to his loss, put to the
expense of bringing the offender to justice: jurors being
taken by lot, no improper influence can be exerted in the
arrangement of the panel: the assistance of counsel being
secured in all cases, the defendant, no matter of what he
is accused, is enabled to make his full defence: and the
intervention of a grand jury being rendered necessary in
every case of a grave accusation, the individual is not
exposed to vexatious prosecutions that can materially
affect him. Standing mute is considered as a denial, not
a confession. Appeals of murder, trials by battle, and
many other oppressive and absurd parts of the ancient




THE CODE OF PROCEDURE.           333
common law, have never been used in our state. Yet,
with all these comparative advantages, our practice requires reform.
First, because the exemption from several of these and
other inconveniences is, in many instances, not secured by
law; and, in others, is given to us by the construction of
the court, contrary to law. In the Introductory Report to
the System of Penal Law, it has been shown, that where
the common law of England is prescribed as the law of
our procedure, it is spoken of without any of the amendments introduced by the English statutes; and that in all
acts, which are created offences since 1805, no mode of
procedure whatever has been provided.
Secondly, because, if the present mode of procedure
were sanctioned by law, it would require alterations and
additions in the several particulars in which they have
been introduced in the code, some of which will be hereinafter pointed out, with the reasons for introducing them.
Thirdly, because of the difficulty, expense and inconvenience, before enlarged upon, of referring to foreign laws,
written in a language which a majority of our citizens do
not understand.
Fourthly, because of the uncertainty inseparable from
laws depending for their authority upon judicial decisions.
Fifthly, as incident to the two last, because of the ease,
convenience, and indeed necessity, for all those who wish
to perform their duty as good citizens, of finding in one
book, couched in language easily understood, and arranged
in a method making them easily accessible to all, the
rules necessary to direct them in all the cases in which
self-defence, the prevention of crime, the arrest of offenders,
and their high duties as magistrates or jurors are involved.
The Code of Procedure now offered, sets out, as that of
Crimes and Punishments does, with an introductory chapter
containing a brief exposition of the objects which it is intended to effect. To this enunciation I have heard no
objection stated, and its utility has been acknowledged by
many of those statesmen and jurists to whom the plan has
been submitted; it has, therefore, been retained.




334            INTRODUCTORY REPORT TO
The first of these objects, in order, as well as in importance, is the prevention of intended offences. This may be
effected by personal resistance. The cases in which resistance is lawful, the degree to which it may be carried, under
what circumstances the interference of private individuals
is permitted, when the sanction of a magistrate is required,
his right to command the assistance of others, and when he
may require the aid of military force, together with the
formalities required for effecting these objects, are set forth
in the first book.
According to our present jurisprudence, there is either
no written law for our direction on these points, which it is
so much our interest, as parties, magistrates, or citizens, to
know, or it is so dispersed in different books, so uncertain
when it is found, and of such doubtful authority, as to
render it unsafe for any one to trust to his own opinion, or,
in truth, in many cases, to that of others. Yet the occasions
which call for the exercise of these rights and duties, are
those of all others in which there is least time to reflect, or
opportunity to consult. For this reason, every man ought
to be provided with the means of acquiring so much knowledge on these points as is necessary for daily use. Without
it, he will neither know how to protect himself, or pay these
duties, which he may be urgently called on to perform in
the protection of others. He must either act at his peril,
submit to injuries which he has a right to repel, or depend
on the purchased opinions, and sometimes the "forked
counsel," of men who disgrace an honourable profession.
The first dictates of common sense inform an individual
that he has a right to defend himself. The laws of society
impose the obligation upon him of defending others, and
of enforcing the execution of the laws. Magistrates and
executive officers are required by official duty to prevent
or arrest violence and depredation; and the military force
is told, that it must assist the civil power when legally
called on. All this the general language of the law gives
the citizen to understand. But in our state it has never
deigned to make such a record of its will as may enable
any one, desirous of obeying, to discover boundaries be



THE CODE OF PROCEDURE.            335
tween legal acts and transgression in the performance of
this duty.  A  correct moral sense, a determination to
injure no one, may, with respect to a man's own actions,
render a knowledge of positive law less necessary; but no
prudence can foresee or prevent the necessity of selfdefence, and every man may be called on in some capacity
to protect others or to defend the peace of the state; and
yet with every inclination to perform the duties of a good
citizen on these occasions, he is continually arrested by the
unavoidable doubts which must arise as to the propriety
of personal exertion in the particular case, or the extent
to which he may carry it. On the vital subject of calling
in the military to the aid of the civil powers, there is absolutely no provision; and there is no power liable to a more
dangerous abuse.  Sometimes necessary for the defence
of the constitution and the enforcement of the laws, it is
at the same time the weapon best adapted for their subversion. The circumstances, therefore, in which its use is
permitted, and the mode of its exercise, ought to be impressed on the mind of every citizen, to prevent his refusing
his aid when it is legally required on the one hand, and of
his being made the instrument of his own oppression on the
other. It is attempted, in the first book of the code now
presented, to provide a remedy for these evils.
The first title treats of the modes of preventing apprehended offences, which it is declared may be either by
resistance or by the intervention of the officers of justice.
The first chapter, by reference to the corresponding parts
of the Penal Code, lays down the rules by which the
resistance of the party injured, to offences affecting his
person or property, is regulated. The second chapter
details the cases in which third persons may interfere,
without the sanction of the magistrate, and those in which
such interference is not only a right, but a legal as well as
a moral duty. In this chapter are contained two provisions which require particular notice. By the first an
honorary reward is held out as an inducement for extraordinary exertion in the prevention of crime, or in bringing
an offender to justice. This consists in a certificate of the




336           INTRODUCTORY REPORT TO
act, recorded on the minutes of the court, and transmitted
to the appointing power to serve as a recommendation for
any office in which the qualities manifested by it are
required; to this, in such cases as the governor and judges
think worthy of the distinction, a piece of plate, of limited
value, may be added. A very high authority (a) tells us
that recompense, in a despotism, must, to accord with what
he terms the principle of the government, be of a pecuniary
nature, and honorary in a monarchy; but that in a
republic, founded on virtue, and which he seems to think
ought to be its own reward, it ought not to be allowed at
all. He admits, that in a monarchy the honour is and
ought to be accompanied by fortune; but why his doctrine
should interdict to republics the agency of both honour and
profit, upon the human mind for the public good, it is not
easy to imagine. If a republic could be composed of men
willing to devote their services to their country from a
patriotic desire to see it prosper, without the admixture of
any other motive, rewards and distinction would be
unnecessary; but such pure attachment to the public good
has never been known to pervade any community; and the
reward of public esteem, and the distinction to which it
leads, must ever be so closely connected in the mind with
the most elevated and disinterested patriotism, as to make
it extremely difficult to pronounce the latter motive to have
been that which predominated in any given exertion for
the public service. All that a wise legislator can be
expected to do, is to present such motives as will most
effectually attain the end, which, in the case under consideration, is extraordinary exertion for the due execution
of the laws. But we must take care that these means are
not such as will produce a greater evil than the breach of
the laws which they are employed to enforce. Such, I
confess, would be a corruption of the morals of the people,
or the introduction of any motive that would destroy the
fundamental principles of their government.
Let us test the system of rewards for extraordinary
services by this rule. There can be no greater incentive
(a) Montesquieu, Esprit des Lois, 1. 5, c. 18.




THE CODE OF PROCEDURE.          337
to voluntary action than the hope of public applause, and
when joined to pecuniary recompense and undiminished
by any consciousness of wrong, it comprises all, perhaps,
that, independent of religious motives, can most forcibly
act on the human mind; it is, therefore, well calculated
to produce the effect. For let it be remarked, that it is
proposed solely to operate in cases where the fears of
punishment cannot be employed; no man can justly incur
a penalty for not doing more than the law requires;
but the public good may, at times, be essentially promoted
by such acts. Some motive, therefore, should be held out
for their performance. Some passion must be enlisted:
it cannot, as we have seen, be fear: it must, then, as the
only alternative, be hope-hope of some enjoyment. Of
what nature shall that enjoyment be? With consciousness of well-doing, pure love of country unconnected with
any personal credit or other advantage, and with public
esteem without any substantial testimonials of its existence, legislation can have nothing to do. The first must
exist in every uncorrupted mind, whatever may be the
operation of the laws; the second is equally independent of external causes, and the third must, in
all societies, in a greater or less degree, attend the
performance of actions for the  public good.  But
these motives are not sufficiently general or strong
to justify us in relying solely on their operation.
Laws must be made for men as they are, not such as an
exalted theory of imagined perfection supposes them to be;
and although in every community some may be found
capable of doing extraordinary acts of public service,
without even the hope of reaping the reward of the esteem
of those for whose benefit they were performed; yet the
bulk of mankind require something more. The consciousness of a good action, the knowledge of the benefit it has
conferred on the country, and even the persuasion that it
is known and silently approved, is not sufficient. Good
policy, it is thought, as well as justice, requires that this
esteem should be expressed by some external mark; and
that pecuniary recompense, the representative of so many
Y




338            INTRODUCTORY REPORT TO
other enjoyments, should, in particular cases, be superadded as a testimonial of gratitude. That the hope of
these additional rewards would strengthen the motive to
action, there can be no doubt; and if they do not counteract the more refined and disinterested impulses,.which
have the same tendency, they may safely be employed;
for although laws cannot direct the operations of the mind,
yet those laws may promote or discourage them, by offering other co-operating or counteracting inducements to
produce or defeat the end proposed; and the inquiry is,
which of these effects will be produced by the employment
of the rewards proposed in this part of the code? Those
held out, for danger incurred, diligence used, or skill displayed in any extraordinary degree, in preventing an
offence, or bringing in offenders to justice, are addressed
exclusively to love of distinction, and of that distinction
only which is founded on public gratitude and esteem.
While this passion can be directed to the support of the
government, the due execution of the laws and the defence of private right, it supports that which is assumed
to be the principle of republican governments; it produces
the same effect, excites to the same acts, and cannot be
distinguished in its operation from the most exalted public
virtue. But the rewards held out by the code, for extraordinary services, are precisely of this nature; a certificate
of the fact, recorded, published, and transmitted to the
appointing power, to serve as an authentic recommendation for offices requiring the exercise of the qualities displayed. In ordinary cases, this is given by the court;
in those which evince higher merit, the concurrence of the
governor entitles the party to the additional testimonial
of a goblet or vase, of little pecuniary intrinsic value;
but the inscription, in which the meritorious act is recorded, placed continually before his eyes and those of
his family, raises him in his own esteem, increases the
reverence of his domestic circle, and gives him a limited
local celebrity, which not only adds to his own happiness,
but, within a certain sphere, operates as an incentive to
promote that of the public.




THE CODE OF PROCEDURE.          339
Honours conferred for brilliant achievements in war, or
eminent services in council, may in a republic be said,
perhaps with some propriety, to be liable to objection;
not because they are wrong in themselves, but because, by
exciting the admiration of the people to a high degree
and attaching it to one man, they give him an undue
influence that may be sometimes used to the destruction
of liberty. But no such consequence can be apprehended
from the unpretending, limited popularity and distinction
given by the means pointed out by the code. On the
contrary, beneficial political effects may be expected by
bringing within the reach of those in the humblest station
those testimonials of eminent merit, and by associating
public favour in their minds with the execution of the
laws. He who has risked his life in an unequal encounter
with ruffians, either to protect another from their violence,
or to secure them for the purpose of punishment, every
one will allow deserves public esteem; but it can neither
be permanent nor extensive, and, of course, will lose much
of its value, if it is confined to the narrow circle of those
who happen to have witnessed, or to have been benefited
by its exertion. It is soon forgotten, it loses most of its
effect as an example, and it is buried in the same oblivion
with the every-day transactions which have nothing to
impress them on the memory.
Paulum sepulta distat inertia
Celata virtus.
Let the little hero of the hamlet have his celebrity for
supporting the laws, and you will have fewer great heroes
who seek it by breaking them; and let it be remembered,
that the recorded certificate and the engraved goblet are
not given to reward the act, but to keep it in memory.
The only reward is the public consideration, which will
not be measured by the worth of these testimonials, but
by the merit and utility of the service rendered.
The provisions of the next succeeding articles are
founded on other principles, and, I confess, are liable to
stronger objections; they give a pecuniary reward to him
who denounces the commission of certain crimes.




340           INTRODUCTORY REPORT TO
1. In order to bring offenders to justice, two distinct
duties are to be performed. The public officer must
prosecute; but he cannot do this until the private
individual, who has suffered by the offence, or knows that
it has been committed, shall accuse. In most cases we
may safely rely, for the performance of this last mentioned
duty, upon the feeling of resentment for the injury, or
upon a sense of public justice. There are cases, however,
in which neither of these motives exist, or are not
sufficiently strong to produce the desired effect, and in
which, to secure the execution of the laws, other inducements must be brought to bear. Punishments and
rewards are those only which the legislator has at his
disposal. The first, it was thought, ought not on this
occasion to be used, for the general reason, that the
denunciation of penalties ought not to be multiplied
without evident necessity; and also, because it was
thought proper to make a sensible distinction between the
omission to give notice of an intended crime, so as to
prevent its commission (which is made punishable by the
code), and the failure to denounce a crime already committed. As the punishment for the first offence was
necessarily placed very low on the scale, the other must
either have been rated so low as scarcely to deserve the
name of punishment, or else so high as to run the risk
of confounding two acts, somewhat similar in their nature,
but very different in their injurious effects. There was
moreover another reason for not employing the sanction
of punishment on this occasion. It is a wise maxim in
legislation, never to enact laws that the prejudices of the
people, or other circumstances, will not allow you to
enforce. Oppressive laws have in most countries, and
from the remotest antiquity, caused those by whom they
were governed to array themselves against their execution;
and whenever any one of their own number lent his
voluntary aid in enforcing them, to consider him as a
-betrayer of their common interest. For which reason a
degree of infamy became attached to the name and office
of the informer, which has extended itself in a greater or




THE CODE OF PROCEDURE.           341
less degree to those who voluntarily offer evidence of the
infraction of the laws, even in countries where they are
neither oppressive nor unjust.  To impose a penalty,
therefore, on those who, guilty of no crime themselves,
should shrink from taking upon themselves the task of,accusers, would seem unjust, even if the penalty be
enforced, which, in the common course of things, would
rarely happen. First, because it is scarcely ever susceptible of proof. If I have witnessed the commission of
the crime and do not inform, who is to accuse me? not the
offender, surely. Not the injured party: for, if he be
alive, and desire the prosecution, he is the proper accuser.
Not another witness: for he is in the same predicament
with myself if he omit to denounce it, and if he do not,
then his information dispenses with the necessity for mine.
Besides, while the prejudice against the character of an
informer exists, it will attach with tenfold force to him
who should assume that office, in order to punish another
for refusing to incur the odium that he has voluntarily
undertaken.
2. Secondly, if that difficulty be surmounted and a
prosecutor be found, jurors will not easily be persuaded
to convict; and when they do, public prejudice will
operate upon the pardoning power to interfere. Againsuppose the person to whom I may have confessed that I
was the unwilling witness of a crime of which I refused
to become the relator, should himself omit to become my
accuser, the law will not be executed. Will you enact:
penalty for him also, and another for the one who omits
to accuse him, and so in endless succession? No, you
must stop somewhere, and rely on a sense of duty, or
some other motive, to procure the necessary information.
This once granted, it is evident that this resting place is
at the first link in the chain, and that you will more
probably obtain information against the original offender
than against those who have not denounced him. The
fear of punishment, then, does not seem to be the
best means we can employ on this occasion.  There
remains the hope of reward.  We have seen that the




342           INTRODUCTORY REPORT TO
prejudice against informers originated in'the injustice and
oppressive nature of the laws, which forced upon the
people the conviction that their interest and that of those
by whom they were governed, were totally distinct. But
when the laws are evidently made for the benefit of the
people, much more when they themselves make the laws,
this prejudice ought not to exist; yet such is the force of
habits, of thinking, and the association of ideas to particular terms, that although the reason in a great measure
ceases to exist, although the reform of our laws will take
it entirely away, yet the effect remains, and we can only
hope to see it entirely destroyed by the operation of time
and of wise legislation: it is in vain to attempt to eradicate
it by penalties. The first step is the enactment of good
laws, and convincing the people, by making them intelligible as well as good, that they are so. This will lead
them by degrees, to the conviction that there can be no
dishonour attached to any legal act by which the public
good is promoted. A worthy citizen will then consider it
no more disgrace to inform or prosecute any infringement
of the laws by public offences, than he now does to complain of injury to his own person or property.  No
ministry of the law will then be deemed degrading; and
from the bailiff who arrests, to the judge who sentences
the offender, the warden who superintends his labour, and
the divine who conducts him to reformation, all will, in
different degrees, be considered as joint labourers in the same
great and honourable work. If your laws for regulating
arrests were just and well understood, the petty oppression
of the constable would cease, and his office would become
respectable. Where the interior of prisons in the United
States have been thrown open to public view, and they
have ceased to become the scenes of vice, filth, and
oppression, the keepers have risen to the rank in society
to which their important duties entitle them. Men of
respectability and talents are employed as wardens of
your penitentiaries-without repugnance they become the
executioners of the sentence of your courts against
criminals, because the laws which condemn them are just




THE CODE OF PROCEDURE.          343
-because the severity of the punishment does not enlist
public feeling against those who inflict it-and because
the good sense of the people has discovered that the laws
are made for their own benefit, and ought to be executed.
He need not be very old to remember the period when
the place of jailor was considered so odious that very
rarely would a man esteemed in society accept it; yet now
the office of keeper of a state prison is sought for by
honourable men as an honourable office.  What has
produced this change? The question is not a difficult
one, and the answer has been anticipated.
We come, then, to the conclusion, pointed out by reason,
and confirmed by experience: that the ministers employed
in the execution of just and mild laws, well understood by
an intelligent people, will in no grade of their rank be
considered as dishonourable; and as a just consequence,
that the duty of aiding them will not be so considered.
The immediate question then recurs, —will the acceptance
of a reward for such aid attach any odium to the performance of the duty? The officer receives a salary or
fees for the performance of his permanent functions, why
should not the individual receive a compensation for his
occasional service? In both cases there is a sacrifice of
private convenience to produce a public good: why should
it not, in both cases, be compensated?  Public prejudice
is against it: this cannot be denied; but the same prejudice formerly existed against the functions of the regular
officer, yet we have seen this giving way gradually to the
force of truth and the increase of knowledge. Why may
not the same effect be expected in this analogous case.
With this hope,the text of the law contains the reason for
enacting it; it exposes the folly and danger of the prejudice that would counteract it; and protects those who
are independent enough to do the duty and receive the
reward, by a penalty against any defamatory reproaches
against them, which the remains of a groundless prejudice
might suggest. The reward is pecuniary only; it is
moderate, and it is confined to certain offences. To have
made it honorary, would have been to destroy the very




344            INTRODUCTORY REPORT TO
nature of that recompense, by making it too common.
The amount is sufficient in most cases to indemnify for
the loss of time and for the trouble attending the service,
and not so great as to offer any temptation for false
accusations. It is given only for the denunciation of
great offences, in the punishment of which the public
have a peculiar interest; and it is extended to breaches of
the laws against duelling and forgery, because, in the one
instance, the prejudices of false honour call for some
additional motive to induce persons to give information;
and in the other, an attention to private interest might
induce the person who had been defrauded, to make
compromises that would defeat the ends of justice, unless it were made the interest of some other person to
prosecute. No offence that is only made punishable on
the complaint of the party injured, comes within this
provision.  An accomplice cannot claim  the reward,
because it would be in vain to offer it to him without
adding to it the promise of impunity; nor can the party
injured, because, in many cases, his testimony is necessary
for conviction, and it was not deemed proper to place him
in a situation that must necessarily detract from his credit.
The third and fourth chapters of this title prescribe the
manner in which the interference of the magistrate may
be required to prevent offences, or to restore to the proprietor articles which may have been illegally and
fraudulently taken from  his possession.  In the first
branch (the prosecution of an intended offence by requiring security), the regulations of the English law, as far
as they could with certainty be discovered, have been
followed; and where its rules were uncertain or defective,
provisions have been added in accordance with the spirit
of that law (by which, on this, as on other occasions, I
repeat it, I have been guided when I found it to accord
with the principles established in the report that has met
your approbation). To obtain the required security, the
party must declare, upon oath, that he fears some offence
will be committed against his person or property by some
person whom he must designate; he must add the reasons




THE CODE OF PROCEDURE.           345
which cause his apprehension; and if the cause assigned
shall, in the opinion of the magistrate, justify the fear, he
shall direct the person complained of to be brought before
him. The fear entertained must be that the offence will
be committed by violence, because against every other
injury to person or property every one is supposed to be
able to protect himself by proper care. The duty of the
magistrate to hear the party accused, and examine his
proof, is pointed out; the security is set forth, and the
cases in which courts may exact it on conviction. A provision, entirely new, is introduced, by which the magistrate,
before whom complaint is made of an intended offence,
when the proof does not show that the complainant had
just ground of fear, is directed, before he discharges the
accused, to explain to him the nature of the offence which
was endeavoured to be guarded against, and the punishment annexed to it by law, and to admonish him that if
he should commit the same, he will incur the highest
penalty that can be inflicted by law for such offence.
Another article directs the like admonition, and prescribes
the same consequences, in cases of applications setting
forth a well-founded apprehension of an intended defamation, by speech, by writing, or by printing. The constitution of our state forbids any previous restraint, even
when such intent shall be proved; but as it makes the party
liable for the abuse of the liberty it gives, it was thought
that the evil might, in some measure, be prevented by the
fear of the increased punishment, if the offence should be
committed after the admonition.
By the search for property taken by theft or fraud, some
of the most important rights of the citizen are at least
endangered, if not actually invaded. Too many precautions, therefore, cannot be taken to prevent the mischiefs
that might arise from its abuse; and if the observance of
the forms prescribed should sometimes involve the loss of
property, the evil will be less than the vexation which a
less restrained power to invade the domicile of the citizen
would inevitably occasion. In framing this chapter the
utmost care, therefore, has been taken to guide the judge




346           INTRODUCTORY REPORT TO
in the exercise of the discretion which must necessarily
direct him in this important function of, his office-to
point out precisely the cases in which alone he can perform
it-to state what evidence he should require in each of
those several cases-to direct, with the most minute precision, the material parts of the order he shall issue,
and to provide that such order shall confer all the
powers necessary for the attainment of the ends proposed,
and also every limitation to prevent abuse and secure the
innocent from injury, and even those who may afterwards
be found guilty from vexation. The duties of the magistrate, of the parties, the witnesses, and particularly of the
officers who execute the writ, are separately, and it is
hoped clearly and accurately, detailed; and the penalties
for any vexatious complaint, or abuse of authority, or
denial of justice, are denounced.
Some of these provisions are new; and those which are
not so, appear for the first time in their natural order and
connexion with each other; and it is believed, that if they
should receive the legislative sanction, much petty oppression, extortion and fraud will be prevented, of which
the ignorant and indigent may otherwise become the victims.  This class, depressed  by their circumstances,
perhaps by their vices or indolent habits, incapable, from
their want of instruction, of asserting their rights, are
those who most need the protection of the laws, and in
most countries they are those who receive the least.
A second title of this book is devoted to the means of
putting an end to such offences as are permanent or continuous in their nature. The first six chapters of which
relate to the means of putting a stop to the several offences
discussed in the Code of Crimes and Punishments, as
those against public tranquillity, public health and safety,
the enjoyment of public tranquillity, public and common
property, morals and decency, and repudiation. These
consist chiefly of references to the correspondent parts of
that code, which, on these heads, direct the interference
of the magistrate, or regulate the exertion of personal
defence. The seventh book is highly important. Under




THE CODE OF PROCEDURE.            347
the title of suppressing offences against personal liberty,
it contains the regulations for granting and enforcing the
writ of habeas corpus. No exposition of this chapter is
necessary; because it has already received the sanction of
your predecessors; and because the subject is fully discussed in the Report on the plan of a Penal Code, which
received the approbation of the legislature in 1822.
Detached parts of this book have been enacted into a
law, incorporated in the Code of Civil Procedure; but I
submit to the legislature the propriety of repealing so
much of that code as relates to this subject, which surely
is no part of civil process, and suffering the whole, as now
presented and formerly approved, to occupy its place in
the present code. This title closes by a chapter directing
the manner in which permanent offences against property
are to be suppressed, and possession restored to the owners
of that which has been seized as stolen or fraudulently
obtained.
A short but very important title, consisting of two
chapters, contains the regulations for calling out and employing the military, in aid of the civil power. The first
chapter designates the cases in which that power may be
called for, and the mode of making the application. The
second regulates the manner in which the military force
may be employed.  By military force is intended the
militia of the state: and the code provides, that it can only
be employed by order of the governor, or, when he is too
distant to act, by that of the militia-general commanding
the district; and the order can only be given on the application, in writing, of three magistrates, one of whom must
be a judge, supported by an affidavit of two inhabitants,
stating that a riot or insurrection has taken place in the
parish in which they reside, and that it cannot be quelled
by the force of the ordinary civil authority. The application must state the circumstances of the case and the
number of men that will probably be required to restore
order. On this application, the governor or commanding
officer is authorized to direct the proper militia force to
march to the place indicated, under the command of an




348           INTRODUCTORY REPORT TO
officer of requisite rank, and put himself under the direction of the magistrates who made the requisition.
In all riots or insurrections, the immediate, sometimes
the ultimate, object is violence to some obnoxious person,
or the plunder or destruction of property.  To protect
these, without the useless sacrifice of human life, is the
object of the laws on this subject; therefore, all the provisions of this chapter are intended, if possible, to stop the
violence by the fear of an armed force, without having
recourse to its dreadful execution.  The militia are only
to be employed where the ordinary civil power has been
tried and found insufficient.  It is, when practicable, to be
stationed between the rioters and the object of their
intended violence; to act strictly on the defensive, and
under the direction of the magistrate. When the use of
weapons becomes necessary, to use only those, such as the
bayonet and sword, which may be directed solely against
the assailants, without endangering the lives of others;
leaving the more dangerous and uncontrollable effect of
fire-arms (which may injure the innocent as well as the
guilty) for the last resort. In no case can the armed
force be brought up before the magistrate has displayed a
white flag, and ordered the rioters to disperse; and unless
to repel an attack endangering life, no order is to be given
for the use of offensive arms, until half an hour has
elapsed after the order to disperse, without its being obeyed.
The remarks on this chapter cannot be closed without
observing the essential difference between the nature of the
armed force, the use of which is contemplated by the code,
and that employed on similar occasions in England and other
countries in Europe. There it is composed of men entirely
under the control of the executive branch of the
government, upon which they depend entirely for subsistence.  Here, except in the circumstances of their
being organized and armed, they differ in nothing from the
power which is at the daily call of the civil officer. Without arms or military array, they are the common posse
comitatus, as it is called, or civil power of the country; the
same ties of property, of family, of love of country and of




THE CODE OF PROCEDURE.           349
liberty, to make them effective instruments for the suppression of disorder, and the most unfit, even when
disciplined and armed, that could be chosen to promote
any scheme of usurpation. The people can apprehend no
danger to their liberties from such a force, even when it is
actively employed against themselves-when deceived by
the factious, agitated by party, or indignant against real
or imagined injury, they are led to oppose the operation of
the laws. Yet with all these safeguards, the legislator
would be unfaithful to his trust, who should neglect other
precautions against the necessary evil of employing the
weapons of war in the work of peace.  According to
the erroneous ideas of the ancient jurisprudence, the
sword of justice always was unsheathed, always brandished.
In our more correct conceptions, it is never placed in her
hands, but is the last extreme of necessity.
The review of that part of the code which relates to preventive procedure, is now finished. It is a meagre title in
the English, and as sterile in our law, for we have added
nothing by statute to that part of the common law which
we have adopted; and in the laws of other nations, with
which, however, I am but very imperfectly acquainted, I find
little or nothing on this important branch of jurisprudence.
Pains and penalties! Everywhere penalties! Every contrivance to punish-scarcely a provision to prevent or
repress! If I did not think it, in some measure, disrespectful to the honourable body I address, to express a
doubt, that every part of the plan they have directed to
be laid before them would receive equal attention, I should
venture to request a scrupulous examination of the title we
have just reviewed, as one of the most vital importance. I
would entreat them to enlarge it by such enactments as their
superior wisdom should suggest, for the great, the sacred
object of preventing offences, rather than punishing them;
and I dare, even at the risk of being thought importunate,
and of tiring them by repeating the same argument,
earnestly pray them to consider deeply the necessity of
early education-general education-religious, moral and
literary education, as the great lever for raising the people




350           INTRODUCTORY REPORT TO
above the temptation of crime, and the only means by
which offences may be prevented by the moral sense, rather
than repressed by the operation of law; and in connexion
with this important branch of our subject, I refer to the
different establishments provided for by the Code of Prison
Discipline, under the heads of School for Reform, House of
Detention, and House of Refuge; and to the reasons which
will be urged in the Introductory Report to that Code for
this establishment.
Having considered the means of preventing inchoate
offences, and arresting the course of such as are in operation, we now approach that which may perhaps, with a
stricter propriety, be considered as a Code of Criminal
Procedure, that is to say, the mode of conducting prosecutions for offences already consummated.  This is the
subject of the second book of the Code. The first title of
this book contains the law of Arrest and Bail, two very
important subjects; hitherto left, for the most part, without positive legislation to guide the officer, the magistrate
and the citizen, in the daily calls upon them to act in the
prosecution of alleged offences, or to direct the accused in
the assertion of his rights. By this part of the Code the
omission is endeavoured to be supplied. The first chapter
contains definitions and general principles necessary for the
full understanding of the provisions which follow, and of
the reasons on which they are enacted. The nature of a
complaint for an alleged offence is explained, and its
effects pointed out. What proof of such complaint is
necessary to give it the force of a legal accusation, and to
justify an order of arrest, is stated. The necessity of such
arrest, to ensure the appearance of the witness on the trial,
the necessity of the commitment further to secure that end,
and the condition of the pledge contained in the contract
of bail, are fully explained and elucidated. These follow in
regular order and in successive chapters, each one
appropriated to a distinct head. The first specifies the
mode of making the complaint and accusation, and of granting the order of arrest. This last mentioned subject, the
order of arrest, is the subject of a separate section. To




THE CODE OF PROCEDURE.           351
deprive a citizen of liberty, before he is convicted of any
offence; can only be justified by the necessity of securing
his appearance to attend the trial and suffer the penalty, if
the charge be well founded.  But it cannot be justified at
all in the following cases: first, where the punishment
annexed to the offence is so light as to destroy the presumption that the accused would avoid it by flight-in
other words, where the inconvenience attending flight,
would be greater than the evil of the punishment; secondly,
when the evidence is not such as to justify a belief that the
accused is guilty; nor lastly, where the accused will give
such a pledge for his appearance as will render it more
probable that he will remain, and either show his innocence
or suffer the penalty of his guilt, than that he will forfeit
the pledge he has given. The chapter is drawn in accordance with these views of the subject.  In case of misdemeanor, where there is no possibility that the party will
incur the certain evil of flight, to avoid the comparatively
light suffering of the penalty directed by law, there is no
arrest, unless it be incurred by wilful disobedience to a
citation commanding the party to appear. In accusations
of a graver nature, the evidence in support of them must
be on oath; it must be positive that the offence has been
committed, and produce belief in the mind of the magistrate that the person designated has committed it, before
the order for his arrest can be granted. The complaint,
and the evidence in support of it, must be reduced to
writing, signed and sworn to by the witnesses. The order
must plainly designate the offence charged, that the
defendant may be prepared on his appearance before the
magistrate with his defence, and it must be delivered to
an officer of justice who is to make the arrest. In order,
as far as possible, to avoid oppression, to ensure the due
execution of the law, to protect the officer against the effects
of mistake in the performance of his duty, and to point
out to private citizens that which may be required of them
when called on to assist him, as well as to designate to
the accused the bounds between legal resistance and the
submission required by law; all these points are fully




352            INTRODUCTORY REPORT TO
explained under distinct heads in this chapter. Great
care has been taken in framing the law on these heads, so
as to make it clear to the most common understanding;
because, in the whole course of procedure, there is no circumstance productive of so many vexatious proceedings
and serious and frequently fatal effects, as that of arrests.
Officers of justice, often uneducated and overbearing men,
either do not know, or designedly exceed, the bounds of
their authority. The accused sometimes submits to illegal
acts, at others, resists those to which he ought to submit.
The citizen, when legally called on to enforce the execution of the law, refuses to obey, or makes himself liable to
prosecution for aiding in an illegal arrest; and it is
believed, that of all the cases of murder, manslaughter,
violent assault and false imprisonment, reported in the
books, no inconsiderable proportion will be found to have
arisen from ignorance of rights and duties in granting
warrants, in making arrests, or resisting them-ignorance
inevitable, from the state of our laws; for where (it is asked
on this as it has been on former occasions), where is the
necessary information to be obtained? The written law
is silent; the oracles who pronounce that which is unwritten
only speak when the case has already happened; and the
unfortunate citizen, called on to act or suffer at a moment's
warning, is forced to do it at his own risk; for those to
whom he has confided the care of framing rules for
his government, have hitherto obstinately refused, or
negligently omitted to dictate them. It is time that this
duty should be done: it is more than time that this
reproach should be done away from our legislation. You
declare, that every man who kills an officer in the legal
discharge of his duty, is guilty of murder, and shall suffer
death. You say, that resistance to an unlawful arrest is
justifiable; and you cruelly and wantonly refuse to
explain what is a lawful and which an unlawful arrest.
You refer to the contradictory and confused decisions of
courts in a foreign country for information on this allimportant point. Do you understand those laws? Are
they clear?-deign then to clothe them in the words of




THE CODE OF PROCEDURE.           353
legislative authority: publish them to your constituents.
Are the cases contradictory? —tell us which of them is
the law.  Are they confused and uncertain?-explain
them. Do you not understand them yourselves? —then
how should we, your constituents, be guided by them, in
matters too on which depend life or death?  If the rules
now offered are not approved, frame others.  When
obedience is exacted, under such a sanction, the least the
people can require is to be clearly and explicitly told what
it is they are to obey.  I feel that I am repeating here
ideas that have been more than once expressed, and that I
am urging former arguments with a zeal that may be
deemed indiscreet, and, I hope, is unnecessary; but I have
a great, a holy duty to perform, and I dare not leave any
part of it undone, from the fear of giving offence, or the
hope of conciliating favour, much less that of gaining
applause. The solemn truth must be told, must be
repeated, until it is felt. "LEGISLATORS ARE IN EFFECT THE
MURDERERS OF THOSE WHO PERISH BY THEIR WILFUL NEGLECT TO
PROVIDE GOOD, OR TO REPEAL BAD LAWS." This responsibility
cannot be thrown off, or even divided, however numerous
the body upon whom it devolves: it attaches to every
individual whose vote is counted either against the reform
or for postponing it to other matters of minor consideration: and the reflection finds its place very naturally at
the close of a review of the chapter relating to arrests, a
subject in which so many require the aid of the law to
guide them, by clear and precise rules, in order to avoid
heavy penalties; in which so few receive that aid at all,
and none in the manner in which it ought to be afforded.
The arrest being made, the next proceeding is to bring
the accused before the magistrate, that he may proceed
to examine and discharge, commit, remand for further
examination, or deliver to bail. Rules are laid down in
the fourth chapter for each of these alternative duties.
The first is the examination. Our present law prescribes,
that the magistrate is to reduce to writing the answers
which the accused may voluntarily make to such questions
as may be put to him without any threat or promise, and
z




354            INTRODUCTORY REPORT TO
the construction put upon this has, I believe, generally
been that no inference against the prisoner is to be made
from his refusal to answer such question; and practice,
which with us so frequently usurps the authority of law,
has established it as a rule frequently followed, to declare
this explicitly to the prisoner, thereby inviting him to
silence, and, of course, depriving the prosecution of
the advantage to be derived from his communications.
The course directed by the code is somewhat different,
and requires some discussion.
The great object of all criminal procedure is the conviction of the guilty-but of the guilty only. Every
precaution which the wisest legislation can suggest, should
be employed to prevent its falling on the innocent. Yet
such is the imperfection of all human institutions, that,
after these precautions are taken, it must happen that
innocence is sometimes mistaken for guilt, and incurs its
punishment. To require, therefore, that a code of procedure should be so framed as to prevent the possibility
of this error, would be absurd; and the only mode of
affording perfect security from conviction to the innocent,
would be to extend impunity to the guilty. All that the
best legislation on this subject can do, is to take every
precaution consistent with the main object (the conviction
of guilt), to secure innocence from being confounded with
it before condemnation, and to correct any errors which
may afterwards be discovered. Therefore, it is no good
objection to any particular part of criminal procedure to
say, that it may involve the innocent. That we have seen
is, in some cases, inevitable under the best systems.
Every question, therefore, of this nature, must be one
which presents a choice between two measures, each of
which has some portion of evil attached to it, and it must
consequently always be one of sound discretion to take
that which has the least.
In the examination of the accused, the advantage is,
that if guilty, he will frequently betray himself by his
own story. The truth would be a confession. He must
have recourse, therefore, to falsehood; but, as error is




THE CODE OF PROCEDURE.           355
infinite, he will state some things which can be easily disproved by circumstances or by other witnesses, and the
investigation of which would lead to his conviction.
Suppose him, on the other hand, to be innocent: his
statements would contain the truth, because he has no
need of concealment, and the circumstances and witnesses
which would detect his falsehood, in the one case, will
evince his truth in the other. If the magistrate, who
examines, in this preparatory stage, were the tribunal
which finally tries, there would be another advantage in
permitting the interrogation of the accused, his looks, his
manner of answering, his hesitation or promptitude, even
his silence, would have their effect in determining on his
innocence or guilt. But we are now speaking of the
examination before the committing magistrate, who has
seldom any agency in the final trial; and even when the
examination is made before the judge who afterwards
presides at such trial, the jury, not the judge, are to
determine the question of guilt; therefore, no impression
that can be made in favour of the prisoner or against him,
from his manner and appearance on his examination, can
have any avail on the trial. From this circumstance
arises the first item in the detail of disadvantages attending the subjecting the prisoner to examination-that his
answers, not being heard by those who are to decide on
his innocence or guilt, can only be communicated to them
by being reduced to writing. The difficulty of doing
this, so as to express precisely the ideas intended to be
conveyed, cannot be appreciated but by professional men,
who must have witnessed how often inaccuracy of expression in the speaker and carelessness or misapprehension in the scribe, concur in producing the most dangerous
errors, even without supposing any intent to mislead or
falsify. An unrestrained right of interrogating is also
very apt to produce insidious and catching questions.
Instead of a cool and impartial attempt to extract the
truth, the examination becomes a contest, in which the
pride and ingenuity of the magistrate are arrayed against
the caution or evasions of the accused, and every construc



356           INTRODUCTORY REPORT TO
tion will be given to his answers that may fix upon him
the imputation of guilt. After weighing these and other
arguments on both sides of this important question, I
came to this conclusion, that it would be unwise to
abandon the advantage to be derived from an examination
of the accused; but at the same time, that justice required us to reduce to their lowest term the two inseparable evils attached to this mode of proceeding, and I
thought that this might be effected by restricting the
magistrate to a prescribed form of interrogatory, so drawn
that no innocent person could be entrapped by answering;
while, at the same time, evasions or untrue answers
might frequently lead to the detection of guilt; and to
avoid inaccuracies in recording the answers, the interrogatories are pointed only to such simple circumstances as
can be detailed with the greatest simplicity of language,
and they are not considered as complete until they have
been signed by the party and corrected by him, so as to
express exactly the idea he meant to convey; if we add
to this that he has the assistance of counsel, and has
heard what the witnesses against him have deposed, it
will be found that the accused is in no danger of being
circumvented or intimidated to his prejudice in the preliminary examination. He is first apprised that although
he may refuse to answer the interrogatories that are about
to be put to him, or answer them in any way he may
think fit, yet a false answer, or his refusal to give any,
must operate against him on the trial. This consequence
is inevitable, and under our present practice, where he is
expressly told that he is at perfect liberty to answer or
not, as he pleases, which implies that no injury can result
to him from his silence, the same result is produced; and
the prisoner is invited to silence by being assured that it
will do him no injury, when in the nature of things the
jury cannot but infer guilt from false representations, or
from silence, without any motive but that of concealing
the truth; either of which circumstances, when they
occur, are given in evidence according to our present
practice. It was, therefore, thought, that justice to the




THE CODE OF PROCEDURE.           357
prisoner, as well as to the public, required that full notice
should be given of the deductions that would be drawn
from his silence or evasions.
It cannot be denied, however, that cases may be supposed in which even the guiltless may be induced, from a
strange combination of circumstances, to remain silent, or
to give a false colouring to the transaction which has involved them in suspicion.  But this reflection did not
prevent my adopting the mode of interrogation which I
recommend: First, because the existence of such circumstances must be of very doubtful occurrence; and if they
should happen, the cases in which they occur being, according to other parts of the proposed system, within the
reach of remission and compensation, ought not to form an
objection to a part of procedure otherwise advantageous.
Secondly, because the same objection lies to our present
practice, and must attach to any other that may be adopted,
there being nothing that can secure the accused, if he is
tried at all, from the unfavourable impression that his
silence or falsehood may make upon his judges if he is in
any way interrogated, or from the effects of circumstances
which render guilt probable, if they cannot be explained.
With this explanation of the reasons on which it is founded,
the attention of the legislature is requested to the fourth
chapter, and it is hoped that it will be found to contain
every provision necessary to protect the prisoner from any
effects injurious to his safety, arising from surprise, intimidation, or false hopes, if he be innocent; and at the same
time secure to the prosecution the advantage of that
evidence which a consciousness of guilt will generally furnish in his answers to the interrogatories. A prejudice,
but it appears to me a groundless one, and certainly very
favourable to the escape of the guilty, exists against procuring testimony from the judicial examination of the
party accused before a magistrate; and yet, without
scruple, we admit testimony of his informal and private
confessions to individuals, as if he would be more apt to
inculpate himself without cause when put on his guard by
the admonition of the judge, and a knowledge of the con



358           INTRODUCTORY REPORT TO
sequences, than he would be in a loose conversation which
he must imagine would never be repeated, and as if the
record of what he has said, corrected and signed by himself after due deliberation and with the assistance of
counsel, were not as high evidence of the fact, as the declaration of a casual witness who may purposely misrepresent the terms of the confession, or unintentionally give it
a false colouring. It cannot be denied that an innocent
man of very weak nerves may sometimes, in his confusion,
give contradictory or false statements that may endanger
his safety, or do acts that cannot be accounted for but on
a supposition of guilt. So may an innocent man incur the
danger of conviction from an untoward combination of circumstances which he cannot explain, or from the misapprehension, or direct perjury of witnesses.  Yet the risk
must be incurred in both cases, unless we abandon
altogether, in the last instance, the prosecution for crimes;
and in the first, all advantage to be drawn, in any shape,
from the best source, the acts and confessions of the party
accused: and all that can be required in a good system of
procedure, is to put these in such a form as will insure
authenticity, and guard against error, intimidation, or the
effects of false hopes. It is believed this has been done.
The prisoner is allowed the assistance of counsel; he may
examine the depositions and question the witnesses against
him, before he is called on to answer the interrogatories
that are to be propounded to him: the form of these is
prescribed by law. He is informed that he cannot be
forced to answer them, but he is admonished that silence
or falsehood must be a circumstance that will operate
against him. His answers, if he give any, are reduced to
writing by the magistrate; they are submitted to his
perusal and correction, and he signs them with such additions and alterations as he deems proper; and if after all
any error should have occurred, means are afforded, on the
trial, to correct it by explanation, and by the examination
of witnesses, before an impartial jury.
The next step, after examination, is to discharge, remand,
bail, or commit the prisoner. The first is the duty of the




THE CODE OF PROCEDURE.             359
magistrate, when the evidence adduced by the prosecution
is not such as leaves on the mind a belief that the crime
has been committed, or that the prisoner has been guilty
of it.  This being only a preparatory proceeding, the
magistrate is directed not to require such proof as would
justify a conviction: his duty, in this respect, is precisely
pointed out.  If there be positive evidence, directly
charging the prisoner with the commission of the offence,
although he may produce contradictory proof, the magistrate cannot discharge, the task of weighing the exculpatory evidence being reserved for the jury on the trial.
When the evidence is circumstantial only, and does not
bring the mind to a belief of guilt, the defendant must be
discharged; but in this case, it is a belief only, not a firm
conviction of guilt that is required, by which is meant,
that the rule laid down for guiding the conscience of a
juror on the trial must be reversed as respects that of the
magistrate on the question of discharging him.  In order
to convict, the juror must have no doubt of the prisoner's
guilt; to discharge him, the magistrate must have none
of his innocence.  The result of an examination may be
such as to show that other proof, within the reach of the
magistrate, may be required; in which case the prisoner
is remanded, or sent back to the custody of the officer by
whom he was arrested, or to the prison in which he was
confined; and at a proper and designated period he is again
brought up and the examination proceeds.  If the magistrate be not convinced of the defendant's innocence, he
must either commit him to prison or take bail for his
appearance, and the performance of this duty is one in
which the highest confidence is necessarily placed in the discretion-of the magistrate. The nature of the contract of bail
is too well known to need any explanation.  Its theory was
to place the accused in the watchful (a) care of persons who
have confidence in him, and who are interested in preventing his escape by the fear of losing the penalty of the bond;
(a) The French word surveillance expresses the idea I mean to convey,
better than even the periphrase I am forced to use, for want of a corresponding word in our language.




360           INTRODUCTORY REPORT TO
and it was also thought that the confidence reposed in him
by his sureties was such proof of good character as formed
a presumption that he was not guilty; but experience, in
many cases, shakes the ground-work of this theory. The
bail may always be indemnified when the defendant is
wealthy and conscious of guilt; and the confidence is
generally reposed more in his means than his character.
Hence, it is apparent, that where bail is a matter of right,
the defendant can always change the penalty of the law
into expatriation, and a pecuniary fine to the amount of the
bond. Therefore the law, while it allows bail in case of
doubt or in offences where these consequences would be a
sufficient punishment, ought, in those of a higher nature,
and where the proof is strong, to secure the appearance of
the party by other means.  Unfortunately the framers of
our constitution have restricted legislation on this subject
within very narrow bounds, and on one construction have
taken it away altogether, if we should, as I cannot but
hope we shall, abolish the punishment of death. The constitution declares, that " all prisoners shall be bailable by
sufficient securities, except for capital offences where the
proof is evident or the presumption great." On the construction I have adopted, the magistrate may refuse
bail in offences where the "proof is evident or the
presumption strong" in offences which, in the time of
rmaking the constitution, were capitally punished: these
were murder, rape, exciting insurrection among slaves,
and stabbing or shooting with intent to murder. But that
in all other cases he is bound to take sufficient bail. Nor can
any legislative provision, except perhaps that of making the
offence capital, enlarge the constitutional restriction. I express myself hesitatingly, because I am not sure what the
courts would say on this question; whether the constitution
intended such cases as were then capital, or those which
the legislature might afterwards declare to be such, or
whether when the offence ceases to be punished by death,
the constitutional rule with regard to bail remains
unchanged. This restriction on the powers of the legislature I consider unfortunate. A highway robber arrested




THE CODE OF PROCEDURE.           361
with his pistol at the traveller's breast-aforger taken in the
act of passing or making his false bills-every other offender, be his guilt ever so atrocious, or the proof of it ever
so apparent, must be let out on bail, and, if he has secured
the means of indemnifying his sureties, may change the
punishment directed by law, for a fine and expatriation or
concealment. Constitutionally, therefore, the magistrate
could be invested by the code with the discretionary
power to bail or not to bail in but few cases, and on one
construction, as we have seen (capital punishment being
abolished), in none. There is, however, no such restraint
upon his discretion as to the amount of the security; and
this being the only remedy for the evil, great pains have
been taken in the framing of rules for the guidance of
the magistrate in the performance of this important duty.
If there be any occasion in which it is proper for the
legislator to declare what he expects from the judgment,
as well as what he commands from the obedience of a
functionary of the law, it is the one now under consideration; because the magistrates, who are to perform the
duty, are commonly unused by previous habit or professional education to the consideration of the questions
to which it gives rise; and because of the high importance
of the due exercise of this discretion, as well to the public
as to the individuals more immediately concerned. There
are those, however, who consider that the law should do
nothing but command, and that its commands should
always be sanctioned by some penalty for disobedience.
The arguments which enforce this doctrine seem to be
founded on the idea that there is some paramount power,
even superior to that of a constitutional law, which limits
legislative power by certain rules of form as well as of
moral duty in the exercise of its functions. Utility prescribes the last, but from what source is the first derived?
We feel that there is an obligation not to enjoin the performance of immoral acts, and we are at no loss to discover
the source of this duty. But when we are told, you are
to prescribe nothing that you cannot or do not enforce by
a penalty, we must seek in vain for some good reason for




362            INTRODUCTORY REPORT TO
the maxim. The lawgiver cannot foresee the circumstances
of every case, and if he could foresee, he could not describe
them; he must, therefore, give general rules, and trust,
within certain limits, to the discretion of the judge, the
power to modify and adapt them to suit particular cases;
that is to say, he must delegate that part of his duty which
he cannot perform himself; and in making this transfer, it
would seem not only right but highly useful to give the
rules and lay down the principles according to which he
desires it to be exercised. This cannot be done by positive
command, because it is to operate on the mind and direct
the judgment, not the action; and as this is a delegation of
discretionary power, it would be absurd to annex a penalty
to an honest, although improper exercise of it, provided the
limits of the discretion were not exceeded. To illustrate
this reasoning by an example drawn from the part of the
code which is in question-the magistrate, in admitting to
bail, is directed, in general terms, so to apportion the
amount as not to suffer the wealthy offender to escape by
the payment of a pecuniary penalty, nor to render the
privilege useless to the poor; and he is told that this
power is, in its exercise, one of the most delicate and
important functions of his office, and he is apprised that
his sound discretion is to direct it. It is clear that here
there can be neither positive command, nor penalty for its
breach; if there were, it would no longer be discretion.
Yet can it reasonably be said, that legislation derogates
from its dignity, or performs a superfluous task when it
points out to the magistrate the objects he ought to have
in view, and the principles by which he is to be guided, in
order to attain it? But the whole duty is not left to the
discretion of the magistrate. Whatever could be foreseen,
and provided for, by that of the law, is reduced to positive
precept, and its breach incurs the penalty attached to disobedience. Thus, where the punishment is fine, the bail
must exceed the maximum of the penalty; where it is
simple imprisonment, one rule is fixed; where the imprisonment is in the penitentiary, another; other rules are laid
down for apportionment in other particular cases; and the




THE CODE OF PROCEDURE.            363
discretion of the judge is reduced in this, as it has been the
object to do in every part of this code, to the strictest limits,
within which it can be exercised consistently with justice.
Some of these rules and restrictions are new; others are
conformable to present practice; but all are for the first
time reduced to the form of statutory legislation.
The bail being completed, the prisoner is suffered to
remain at large until the trial; but provision is made, that
for the security of the bail, they may, at any time, exonerate
themselves by his surrender, and the particular mode of
doing this is prescribed.
If sufficient bail be not offered, or if the case be one in
which the magistrate rightfully refuses to receive it, the
prisoner must be committed to prison, to abide the event
of his trial if he be not before that time bailed or discharged
by the judge of a superior tribunal, or habeas corpus. The
order for commitment is directed to be in writing; its form
and essential parts are prescribed, as well as the mode in
which it is to be executed; and all the means that experience
or reflection could suggest, have been adopted to prevent
the discharge of the prisoner, which so frequently happens
from formal defects in the warrant, while every requisite
security against abuse and oppression have been carefully
provided. After commitment, the prisoner may be bailed
or discharged, if the nature of his case permit it. But the
inferior magistrate has no other agency in this proceeding
than to furnish all the evidence of that which was had before
him to the judge before whom the prisoner may be brought,
on the return of the writ of habeas corpus; to the chapter
on which subject the legislature is referred for a minute
detail of the duties and rights of all parties and agents,
from the judge who decides, to the prisoner whose case is
before him; and with this ends the provisions necessary
for securing the appearance of the defendant at the trial, by
which his guilt or innocence is to be ascertained, and at the
judgment, by which it is to be proclaimed. In framing
this part of the system, it has never been forgotten, that
the guilty were to be brought to punishment with as little
inconvenience as possible to the innocent; and that no pre



364           INTRODUCTORY REPORT TO
sumption or other evidence of crime could, before trial and
conviction, justify any thing more than necessary restraint.
With this view, a reverent eye has constantly been kept on
those admirable provisions for the security of personal
liberty which are to be found in the laws of England, which
deserve the gratitude as well as the admiration of the
world. Institutions which are every day extending their
influence over the happiness of mankind, and which will
prove a more lasting and honourable monument of the
wisdom, justice and greatness of the nation from whose
jurisprudence they are drawn, than any which their
splendid victories, their power, their wealth, or even their
science, could erect. Of these institutions the writ of
habeas corpus is that which applies to this part of our
subject. The idea of this remedy is to be found in the
Roman law; but there, as well as in the common law of
England, it was ineffectual, until the great statute, of that
name, gave it the essential features to which it owes all
its utility.  These features have been rendered more
definite, new provisions and penalties have been added,
and, I think, it may now be asserted with truth, that
individual liberty can suffer no restraint, which, under
this law, will not find an easy, prompt, and unexpensive
remedy.
In reviewing the duties of the examining magistrate,
among them should have been stated that of taking an
obligation from witnesses, under a penalty, to secure their
appearance at the trial, and of committing to prison such
as refuse to enter into that obligation. Analogous to this
is a proceeding which, although an invasion of personal
liberty, is practised in most countries, and, I think, justified by the same reasoning which shows the right of
taking private property, or coercing personal service, for
the public safety. When one who is a necessary witness
in the prosecution for an offence punishable by imprisonment for life is not a householder, and consequently wants
one principal tie to prevent his departure, and has no
friends or connexions who will become bound for his
appearance, he may be detained in custody until the trial;




THE CODE OF PROCEDURE.           365
but in this, and in the Code of Prison Discipline, it is
specially provided, that he be properly and comfortably
supported at the public expense; that he suffer no degrading or contaminating associations while. detained; that
he be allowed every indulgence, as to occupation, amusement and society, which the good order of the house (for
the place of his detention is not characterized as a prison)
will allow, and that when discharged, full compensation
be made for the loss he has incurred. The duties of the
examining magistrate end with transmitting to the proper
officer of the court having cognizance of the case all the
proceedings which have been had before him, including
the original examination as well of the party as of the
witnesses; and here' opens a new course of proceeding,
contained in the. second title of this book. It treats of
the proceedings subsequent to the commitment or bailing
of the prisoner. The first chapter details the manner in
which the appearance, as well of the party as the witnesses,
is to be enforced, which, as it differs little, except, it is
hoped, in precision and certainty, from the mode now in
use, needs only a reference to the chapter.
The second contains some regulations which it was
thought would introduce order in the arrangement of the
different cases preparatory to the indictment or information.
Among them is one which obliges the prosecuting officer
to designate, before the meeting of the grand jury, on a
copy of the calendar furnished to him for that purpose, all
such cases of misdemeanor as he may choose to prosecute
by information; and the papers, in relation to these cases,
are not sent to the grand jury. This is done, as well to
avoid any interference between the two accusing powers,
as to ensure, on the part of the prosecuting attorney, the
performance of his duties. For this officer, after having
designated those cases in which he will proceed without
the intervention of the grand jury, is bound to file his
information before the end of the term; and the court being
made acquainted with them, as the cases which are before
him, he cannot, if so-inclined, favour any one by delay in
the prosecution, or throw off the reproach of neglect upon




366           INTRODUCTORY REPORT TO
the grand jury. And that body being obliged, as their
exclusive duty, to inquire into all cases of crime, and all
those of misdemeanor not selected by the public prosecutor, it follows that every accusation must be disposed of in
one or the other mode.
The third chapter is an important one. It relates to
the organization and duties of the grand jury. This
institution is a favourite one in England and in the
United States. But although I consider its advantages
outweigh the objections to which it is liable, and have,
therefore, preserved for it a place in the system, yet I
cannot but suspect that it owes much of its popularity
to its name, and to the association which connects it
with that invaluable blessing to a free country, the trial
by jury. Some part of its utility, too, is traditional only.
In the party questions, which at different times have
divided the people of England, and which very rarely
ended without enlisting the judiciary power on that side
which was espoused by the crown, it was sometimes a protection against the combination of royal and judicial oppression, and would have been more frequently so if there had
been any means of securing an impartial selection of its
members. It is not my -intention to present a history of
this institution, or a detail of its advantages or inconveniences, in its origin, progress, or present state, in the
country from which we have inherited it. It will be
sufficient to offer the objections to its establishment here,
which have occurred to me, and the reasons in its favour,
which I have thought sufficient to countervail them.
With such an admirable contrivance for the security of
innocence against unjust prosecutions as the trial by jury,
where unanimity is required for conviction, any intermediate examination between that made by the committing
magistrate and the final trial would seem an obstruction
to the course of justice, of which the necessity, or even
the convenience, is not very apparent. The secrecy, too,
of that examination, and the precautions taken to prevent
the slightest responsibility resting on any one of those by
whom it is made, it might be argued, give a chance for




THE CODE OF PROCEDURE.           367
favouritism, or undue influence, to interpose in favour of
those whose guilt would be apparent on a public trial; while,
on the other hand, it might be said that witnesses, according to the usual practice, being heard only to charge the
defendant, and heard in secret, he is deprived of the
advantage secured to him before the magistrate of showing his innocence by countervailing proof; and thus, in all
cases originating by complaint to the grand jury, he would
be subject to commitment and trial, on the evidence of
circumstances which he might have fully explained had
the examination been publicly had before a magistrate.
To this it may be added, that grand juries are very rarely,
if ever, composed of men having such a knowledge of the
law as will enable them to determine what evidence ought
to be admitted, to what credit it is entitled, or whether
the facts it discloses amount to an offence; and that this
ignorance of their duties, or an inattention, which is worse,
frequently causes them to mistake or disregard the duties
of their office, and assume the cognizance of matters with
which they have no concern; sometimes censuring the
conduct of political opponents; sometimes lending their
influence to promote party views. These objections are
weighty, and some of them not ill-founded. But after
the fullest consideration, I thought that those to which
satisfactory answers could not be given, might be obviated
by alterations, which would make none in the general outline of the institution; and, therefore, for the following
reasons I adopted it with the modifications contained in
the code.
1. First, because it participates largely in that prominent characteristic which distinguishes the trial by jury
(a), of spreading general information, and a particular
acquaintance with the practical operation of the constitu.
tion and laws; of creating an attachment to the principles
on which they are founded, and, by the periodical performance of an important function, promoting the happiness
of the individual by a sense of self-importance, and that
of the public, by a constant vigilance over its peace. It
(a) See Report on the Plan of a Penal Code.




368           INTRODUCTORY REPORT TO
might, if necessary, easily be shown that each of these
effects will be produced by the frequent exercise of the
duties of a grand juror; and all of them are objects of
the highest consequence in legislation. For, in a government created for the common good of all its citizens, that
organization of any department is certainly to be preferred,
which, while it is equally well calculated with any other,
for the performance of the duties for which it is particularly
intended, also opens new sources for individual happiness,
diffuses knowledge, fosters an attachment to true principles,
and adds stability to the government of which it is a part.
It has appeared to me, that a want of attention to such
considerations is a common fault in the legislation of our
country.  We shape our laws to fit the principal end
which is proposed, without sufficiently examining whether
the same object could be obtained by means that produce
other collateral effects of equal or perhaps of greater importance, and avoid dangers which, in our eagerness to
attain some doubtful good by a straightforward, off-hand
legislation, have totally escaped our attention. Thus, to
raise a revenue for some useful purpose, we license
gambling-houses; to promote education, and provide for
the building of churches, we establish lotteries; to avoid the
expense of erecting a penitentiary, we incur that of supporting our convicts in idleness; and put some of our citizens
to death, that we may impress on the minds of others the
great truth that killing is unlawful. We do this, without
sufficiently inquiring whether the requisite revenue might
not be obtained by some other and better means than
giving the sanction of law to the worst of vices; whether
a purer source could not be found, from which to draw
the means of supporting religious and scientific education,
than one that corrupts morals, encourages idleness, and
leads the poorer classes to poverty and vice; whether the
crimes which are fostered in the vicious association of confinement, without labour, are not infinitely more expensive
to the community than the most costly house of labour;
and whether shedding man's blood is the most effectual
way of showing that it ought not to be shed.




THE CODE OF PROCEDURE.           369
2. Independently of this collateral, but highly important advantage, attached to the institution of grand juries,
it was adopted, secondly, because it was already established,
and it has been my uniform practice to alter no part of the
system but such as could be clearly shown to be defective
or inconsistent with other parts of the plan. Whether
the present is of this character must depend upon an examination of the objections which have been stated.
These are in substance, that the intervention of a second
accusing power, between the commitment by the magistrate and the trial, is a useless piece of machinery in penal
law; that from its particular organization it is cumbrous,
and from its secrecy dangerous; that it may, without responsibility, protect guilt and vex innocence; and that the
ignorance of its members frequently leads them into erroneous ideas of their power, which creates confusion in the
administration of justice.
The error of the first objection lies in supposing that
the commitment of the magistrate, in all cases, contains
such an exposition of the circumstances and nature of the
offence as would enable the party to prepare for his defence,
by knowing exactly, not only with what crime he was
charged, but also when, where, and in what manner he is
accused of having committed it. But this is far from
being the case. If the ministry of the grand jury be
dispensed with, that of some other body of men, or of
some officer, must be substituted for the performance of
this duty. If it be vested in a known officer or a permanent body, he or they being previously known, will be
subject to the approaches of influence in all its seducing
forms, for the purposes of favour or oppression. Whereas
the grand jury, selected by judges totally unconnected in
any other manner with the proceeding, out of a very limited
number, taken by lot immediately before the session of
the court, are out of the reach of any attempt to seduce
or intimidate them. If, to obviate this, and at the same
time the next objection, that the grand jury is inconveniently great, it should be said, draw your accusing
judges also by lot, or let them be appointed by the execu



370           INTRODUCTORY REPORT TO
tive immediately before they enter on their duties, but let
the number be less: it is answered, this expedient gives
us still a grand jury. If appointed by the executive, you
do not take away the danger of an undue influence; you
only change the person to whom it may be addressed. If
you take them by lot, in the manner proposed by the code,
the only question is, whether the substitution of any
smaller number for that now required will be attended
with any advantage sufficiently great to justify the change.
It is thought not. If no great reduction be made, the
difference will scarcely be perceptible in the mode of proceeding. If the number be few, some advantage may be
gained in celerity; but a greater lost in the want of information, and in the freer scope given to the influence of
favour or animosity among a few. The object of this
institution being, not only to make accusations of such
infractions of the law as have been prosecuted before the
examining magistrate, but the jurors being individually
bound to make inquisition into all such as they have
reason to think have been committed in the district for
which they are assembled, it follows, that a reasonable
suspicion, entertained by one of the members and communicated with the circumstances on which it is founded
to his fellows, will be sufficient to ground an inquiry; for
which purpose they are vested with powers to send for
and examine witnesses. This object will obviously be
better attained by a numerous than a small body.
The objection drawn from the secrecy of the proceedings
before the grand jury, is one that comes in a more imposing shape than any other, in a country where publicity
in every department is justly considered as the greatest
security for good conduct in those who direct them. Yet
there are reasons why I should hesitate to remove the veil
that has been drawn over the proceedings of the grand
jury room. To appreciate these reasons, we must consider
the constitution of this body and the nature of their
duties. The members are not appointed or chosen to perform the functions of an office, but designated, as we have
seen, by lot to perform a service, an onerous one, which




THE CODE OF PROCEDURE.           371
they have not courted, and to which they have not been
called by an appointment which they might accept or
refuse. It would seem unjust, therefore, to expose an
individual, thus performing an involuntary duty, to the
odium or suspicion inseparably attached to it, for any
erroneous but honest expression of his opinion; and
against the prosecution for corrupt or other illegal conduct,
the oath of secrecy taken by his fellows is no protection.
It must be remembered, too, that the honest and useful
prejudice against secret informers, although it may have
contributed to give force to this objection, has in reality
no application to the proceedings before a grand jury.
When any member of this body prefers an accusation, he
becomes a witness, his deposition is taken, and with that
of every other witness, is handed into court. The secrecy
is not in the accusation, or in the name of the witness
who makes it, but it is confined to the opinion which each
juror delivers as to the weight which the evidence ought
to have. To make this public, would be to deter the
timid from the discharge of an important duty, by exposing him to the animosity of those who might be affected
by it, and could be attended with no advantage whatever.
If the office were an elective one, it would be important
for the people to know how the officer had performed his
duties; if it were one held by appointment, the same information would be useful to the executive or appointing
power; but in the case before us, responsibility, except for
offences, does not and need not exist; and where there is
no responsibility, publicity can be of little use.
The want of general knowledge, and especially an
ignorance of the law in the greatest number of jurors, is
also alleged as a serious objection against their fitness to
determine whether a citizen shall be exposed to the risk
and vexation of a public trial, or a knave shall be snatched
from the conviction that would probably be the consequence of his trial; and it must be confessed, that if
this objection be at all well founded, it is particularly so
when applied to a system like the present, in which the
jurors are taken by lot. But we must consider that the




372            INTRODUCTORY REPORT TO
principal duty of a member of this body is the determination of matters of fact, which requires nothing more
than the exercise of a plain, sound understanding, a
knowledge of the different concerns in common life, an
independent spirit, firmness and integrity, acquirements as
probably to be met with in any twenty men, who might
be selected from three times that number presented by lot,
as in any particular class of society. Ignorance of the
law must certainly be expected. As our laws now stand,
this objection might be made with nearly the same number, chosen with the greatest care from the whole community among those who are liable to this duty. It is
obviated, in a great degree, by several provisions: the
duties of grand jurors are specially pointed out; and that
part of the code which contains them, is directed to be
read to them and a copy sent to their chamber: the
written law, upon every one of the offences on which they
are to decide, is also laid before them: the public prosecutor is directed to give them his advice on all the cases
which he knows from the calendar will claim their attention, and on all other points, whenever it shall be required;
and any further doubts they may entertain, are directed
to be cleared up by the court. With these precautions
to avoid error, it seems almost impossible that any of importance should be incurred; and the necessity of resortLng to these sources for information, will every day be
diminished by the knowledge of the laws which these
measures cannot but diffuse among the people.
One other inconvenience remains to be mentioned. The
abuse encouraged by the courts, and readily fallen into
by grand juries,-that of assuming the power of discussing
and deciding on extra-judicial and political questions.
This has an unhappy effect, particularly in a popular
government, where party spirit is so apt to introduce itself
into every assembly, to mix in every deliberation, break
the ties of friendship, relax those of kindred, embitter
social intercourse, madden public discussion, and unless
restrained, impress its character on legislation, and pervert
the administration of the laws. The greatest of these




THE CODE OF PROCEDURE.            373
-evils would be, that it should insinuate itself into the hall
of justice; and as far as positive interdiction can go, this
entrance through the chamber of the grand jury has been
closed. The grand jury, thus organized, is exclusively the
accusing power in all cases of crime, and in those of misdemeanor concurrently with the public prosecutor, of
whom there is one appointed for each court of criminal
jurisdiction. The intervention of this body has been
erroneously called a double trial, and it has been stigmatized as an injustice that the accused has not the
privilege of being heard before them. Although the
answer to this objection has, in some measure, been
anticipated, yet it may be necessary to add, that, until the
indictment be found, the accusation is not complete, consequently there is nothing to answer, and nothing to try;
and when it is found, there would be an absurdity, as well
as glaring injustice, in permitting the truth of the accusation to be tried by the same body that had just
preferred it.
It is hoped and believed, that in the chapters describing
the mode of proceeding in the grand jury, and enjoining
the duties of the court and the several officers of justice in
relation to them, many things will be found which may
prove useful in establishing and giving certainty to our
present practice, together with some innovations that may
be deemed improvements on the system, although they
are not thought of sufficient importance to be here discussed. The assent of twelve jurors is made necessary
for finding an indictment, but that of a majority of those
present is sufficient to decide incidental questions. The
act of accusation being found, must be delivered into the
hands of the judge m open court, who, if the defendant
be m custody or on bail, shall order it to be filed; but if
he be at large, in order to avoid his receiving notice and
escaping, the judge shall issue a warrant for his apprehension, and keep the indictment in his hands until the
arrest be made. Freedom from arrest, during the term
of his attendance, and from action or prosecution for anything said'in the performance of his duty, excepting




374            INTRODUCTORY REPORT TO
perjury in a deposition made to his fellows, is secured to
each grand juror.
A chapter is devoted to the form and substance of
indictments and informations-an important division; for,
to the want of precision in our law on this subject, may
be traced the numerous instances in which men evidently
guilty have escaped punishment. In a system which
admits the humane maxim, that it is better an hundred
guilty should escape than one innocent man be punished,
it becomes an imperative duty to avoid all those doubts
which make the administration of criminal justice a lottery,
with so many chances in favour of guilt. Every man,
who has attended our courts, must be convinced of the
deleterious effects of this uncertainty, and must have seen
the reliance that is placed upon it by culprits on their
trials. The first question asked of their counsel, especially
by old offenders, is, whether he can find no flaw in the
indictment; and there can be no doubt of its effect in
multiplying crime, by adding one more to the many hopes
of impunity. Every endeavour, therefore, has been made
for giving to the provisions of this chapter such a character
as will make it secure to the accused every information
necessary for his defence, but deprive him of all hopes of
escaping, in any other manner than by a verdict, which
shall declare him innocent. Among the first, is the
direction for stating clearly in the act of accusation,
whether indictment or information, all the circumstances
which enter essentially into the description of the offence
charged, the place where it was committed, and, in private
offences, the names of those to whose property, person, or
reputation, the injury was offered. To render mistakes
less frequent, and secure uniformity in this important part
of procedure, forms are provided in a subsequent part
of the work, applicable to each offence; but to avoid delay
in the few cases in which these forms may have been carelessly departed from, those directions which may be considered as substantial are designated and distinguished
from those which are formal only; the latter being
amendable, of course; and the former, except in a single




THE CODE OF PROCEDURE.-                  375
instance, not operating so as to discharge the accused, if
objected to either before or after trial; that single exception being the one that the indictment charges a fact
which does not amount to an offence. In every other case,
the indictment is amendable by being referred again to the
grand jury, where necessary,-and the cases in which it is
so  are pointed  out, —giving the  party always time to
answer the new allegations. A proper idea of all these
provisions can only be formed by a perusal of the chapters
which contain them. One alteration, however, demands
particular notice. In no cases are exceptions to form
more frequent, in none do they more effectually defeat the
ends of justice, than in prosecutions for forgery, passing
counterfeit bills, and other offences in relation to instru.
ments in writing; if an erroneous denomination be given
to the instrument, by calling it an order when it is really
a bill of exchange or a promissory note, or if the tenor of
the writing be not exactly set forth in the indictment (a),
the proceedings are set aside, and under some circumstance the defendant, although his guilt has been ascertained by a verdict, is discharged. These consequences
are avoided by a simple provision, which has been alluded
to in the Introductory Report to the Code of Crimes and
(a) To any one who has attended to the proceedings of criminal courts,
it would be unnecessary to cite instances of the allegation in the text.
One of rather a ludicrous cast lately occurred in England. In an indictment for forgery, a stroke of the pen, which occurred in the instrument,
had not been copied in the indictment. The prisoner being convicted,
his counsel moved in arrest of judgment, and assigned the omission
of this stroke for cause. The paper and the indictment were handed up
to the bench, and the judge, not being able with the naked eye to discover
any difference, had recourse to a glass, and by the aid of a strong magnifier
discovered something which he said was either a tick (a word of which I
do not profess to know the meaning) or a letter, which he would not or
could not determine, but submitted it to the jury, with directions, if they
found it to be the one (I forget which) to convict, if the other to acquit;
and to aid in the determination of this important question, he handed them
his glass-the microscopic powers of which determined them in favour of
the acquitting alternative-and the prisoner was discharged: if the
judge's glass had not been brought into court, or had been of a lower
power, he would have been hanged I I!




376           INTRODUCTORY REPORT TO
Punishments. In all cases, to avoid the delay arising
from objections to form, whether made in the shape of
motions to quash the indictment, to set aside the proceedings, or to arrest the judgment, a copy of the indictment is directed to be furnished to the defendant, and, at
a convenient time before the trial, he is brought into court
and informed, that if the indictment contains any defect
of form (and what are deemed to be such are explained to
him) he must specify them by a day designated; but if he
fail to make them then, he will for ever be precluded.
In the mean time he has counsel assigned to him, if he
have employed none. After the period for deliberation
has elapsed, he is again called on for his exceptions; if he
make any, and they are such as are designated in the code
to be those of form merely, they are amended immediately
by the public prosecutor; if of substance, the indictment
is sent back to the grand jury. But if no exception be
then made, none will afterwards be heard, except the
radical defect that the facts charged do not amount to an
offence. In prosecutions for offences, founded on writings,
the indictment is not required to give any denomination to
the instrument; it is not called a note, a bill, or bond, but
simply an. "instrument in writing, of which a copy is
annexed."  By this means one fruitful source of error,
uncertainty and delay, is avoided. Another, to which, as
has been said, this species of prosecution is particularly
liable, is avoided by the proceeding just detailed; the
indictment and the copy of the instrument being served
on the defendant, when he is brought into court the original
is submitted to his inspection and that of his counsel;
time is given to compare it with the copy furnished; and,
in addition to the notice given in other cases, he is
apprised that if he means to make any exception to the
correctness of the copy furnished, he must do it in the
time limited by the rule before trial. If he make any
such exception, and it is found to be well taken, the copy
is immediately amended; and it is not until all difficulties
of form are thus got rid of, that the defendant is called on
to answer to the merits. This is done formally in open




THE. CODE OF PROCEDURE.          377
court, and the answer can only be a confession or denial
of the charge; excepting only, the plea that the defendant
has before been acquitted or convicted for the same offence.
A refusal to answer, or any indirect or evasive answer, is
considered and recorded as a denial of the charge. As
but one mode of trial, consistently with this code, will be
known to our law, the useless question, which implies an
option, is no longer to be put. The trial by jury is
established as the only one that can be resorted to. The
reasons for this are so obvious and are so fully stated in the
Report on the Plan of a Penal Code, made to your predecessors in 1822 (a), that nothing need be added to show
the importance of this institution, as well in a political as
a judicial point of view. A'striking exemplification of
the views contained in that Report, has lately come to my
knowledge, which I think it may be proper to offer in this.
The island of Ceylon, inhabited in different proportions
by Hindoos, Mahometans, and descendants of emigrants
from Siam, Ava, and other parts of the eastern continent
and its adjacent islands, passed successively under the
dominion of the Portuguese, Dutch and English, who
have added to the heterogeneous mixture of inhabitants
by a number of their descendants, springing from an
intercourse with the native women. The English, having
conquered this island in 1796, have ever since been in
quiet possession of this valuable colony.  For the
administration of justice, the Dutch had introduced the
civil law, by which the country was governed until the
year 1811, when Sir Alexander Johnston, chief-justice of
the island, succeeded in the bold project of introducing
the trial by jury into the criminal courts of the colony.
Let those who doubt the political utility of this institution-who think it fitted only for the people of highly
civilized and well-informed nations-who do not appreciate
its power in spreading informtion and elevating the personal and national character; let those, and they are not
a few, who have considered the former report on this
(a) Report on the Plan of a Penal Code, p. 15.




378           INTRODUCTORY REPORT TO
subject as an effusion of an enthusiastic veneration for a
vain theory; let all those peruse the following authentic
account, furnished from the highest authority, and confess
the almost omnipotent power of this great institution in
reforming and elevating the character, overcoming national
prejudices, uniting the most discordant materials, diffusing
useful knowledge, purifying the sources of justice, and
demonstrating, by its effects, that no governments are so
strong as those in which the people are suffered to participate. Let the enlightened author of this experiment
himself explain its effects. In a letter, written by Sir
Alexander Johnston to the Board of Control in the year
1815, he says:
"I have the pleasure, at your request, to give you an
account of the plan I adopted, while chief-justice and first
member of his majesty's council in Ceylon, for introducing
the trial by jury into that island, and for extending the
right of sitting on juries to every half-caste native, as
well as to every other native of the country to whatever
caste or religious persuasion he might belong. I shall
explain to you the reasons which induced me to propose
this plan, the mode in which it was carried into effect, and
the consequences with which its adoption has been
attended. The complaints against the former system for
administering justice were, that it was dilatory, expensive
and unpopular. The defects of that system arose from the
little value which the natives of the country attached to a
character for veracity; from the total want of interest
which they manifested for a system in the administration
of which they had no share; from the difficulty which
Europeans, who were not only judges of law but also of
fact, experienced in ascertaining the degree of credit which
they ought to give to native testimony; and finally, from
delays in the proceedings of the court." The chiefjustice then details the remedies he proposed for these
evils, which could only be removed, as he thought, by the
introduction of the trial by jury. He says, that he then
consulted the chief priests of the Budha religion, and the
Brahmins, as to the effect it would have on the followers




THE CODE OF PROCEDURE.            379
of those religions; and having submitted his plan to the
governor and council, who "thinking the adoption of the
plan an object of great importance, and fearing lest objections might be urged against it in England on account of
its novelty, no such rights as it was proposed to grant to the
natives of Ceylon ever having been granted to any native
of India," sent him to urge its adoption, and he most fortunately succeeded. The chief-justice then proceeds to
explain the qualifications of jurors, the manner of selecting
them, and of conducting the trial; all of which, though
highly interesting, do not so immediately apply to my
subject, as the account of the effects, which he thus details:
" The native jurymen being now judges of fact, and the
European judges the judges of law, one European judge
only is necessary. The native jurymen, knowing the different degrees of weight which may safely be given to
their countrymen, decide upon questions of fact with more
promptitude. All the natives, who attend the courts as jurymen, obtain so much information during their attendance,
relative to the modes of proceeding and the rules of evidence,
that since the establishment of jury trials, government have
been able to find among the half-caste and native jurymen,
some of the most efficient and respectable magistrates in
the country." After stating that the saving it produces to
government is at least 10,0001. a year, he proceeds:-"No
man whose character for honesty or veracity is impeached,
can be enrolled on the list of jurymen. The circumstance
of a man's name being upon the jury-roll, is a proof of his
being a man of unexceptionable character, and is that to
which he appeals, in case his character be attacked, or in
case he solicits his government for promotion. As the
rolls of jurymen are revised by the supreme court at every
session, they operate as a most poweiful engine in making
the people of the country more attentive than they used to
be in their adherence to truth. The right of sitting upon
juries, has given to the natives of Ceylon a value for character which they never felt before, and has raised in a very
remarkable manner the standard of their moral feelings.
All the natives of Ceylon, who are enrolled as jurymen,




380            INTRODUCTORY REPORT TO
conceive themselves as much a part, as the European judges
themselves are, of the government of the country, and thereforefeel, since they have possessed the right of sitting upon
juries, an interest which they never felt before in upholding
the British government of Ceylon." He then gives as a
proof of this, their indifference in wars before this privilege, contrasted with their zeal in those after it was
conferred. The writer of this interesting and highly
instructive letter refers, as a proof of his assertions, to a
charge delivered by his successor eight years after the
experiment was tried, in which he ascribes a remarkable
decrease of crimes, "above all other causes, to the introduction of the trial by jury. To this happy system," he
proceeds, "now deeply cherished in the affections of the
people and revered as much as any of their own oldest
and dearest institutions, I do confidently ascribe this
pleasing alteration; and it may be boldly asserted, that
while it continues to be administered with firmness and
integrity, the British government will hold an interest in
the hearts of its Singalee subjects, which the Portuguese
and Dutch possessors of this island were never able to
establish."
The statement of this case, tallying so exactly with the
ideas I had expressed some years before the letter was
written, is worth volumes of arguments, and every reflection I have given to the subject since, and they have
neither been few nor cursory, has convinced me so much
of the danger of tampering with so great a blessing, of
injuring in the attempt to ameliorate what is so positively
good, that I could not venture to propose any alterations,
although some came recommended by the most plausible
reasons as valuable improvements: among these was that of
substituting for the unanimity now requisite to a decision,
a bare majority of votes, or some other number less than
the whole. The absurdity,. as well as cruelty, of enforcing that unanimity, under pain of starvation, and the
injustice of making the fate of the accused depend on
the ability of his judges to resist hunger and thirst, seems
so apparent, that, if no other remedy could -have been




THE CODE OF PROCEDURE.              381
found for the evil, I should, perhaps, have abandoned this
characteristic in the trial by jury, and adopted some of
the proposed modifications, to avoid the evil. But a
practice had been introduced, which, where it prevailed,
in a great measure presented the remedy I sought.
Courts, in the exercise of the legislative power which they
held, partly by assumption, partly by the negligent permission of the branch to which it of right belongs, had
gradually introduced an important change in this branch
of our jurisprudence: when jurors could not agree, instead of being starved, or in some cases carted into
unanimity, they were discharged; and the contest became
one of argument and reason, instead of physical force and
ability to resist the cravings of nature. The objections
to this improvement, for such experience has shown it to
be, are, that being entirely without legislative sanction,
it depends on the court to determine whether it shall be
introduced at all, and when it is, what degree of suffering
must be undergone by the jury before they are discharged.
In the code presented to you, rules are prescribed for
that purpose. The legislature speaks, and it is no longer
imposed upon the court, as some decisions require, to
watch, like the medical attendants on a victim of the inquisition, over the struggles between nature and famine,
and to discharge the juror only when they are convinced
that there is immediate danger that death will release
him (a). The jurors are no longer to be kept without
food; because it is not considered to be well established,
that hunger will bring a man to a correct conclusion,
though it may to a speedy one; and in the system I have
adopted, justice is the first, and celerity only a secondary
consideration. Jurors are treated like reasonable beings,
and with the respect due to a co-ordinate branch with the
judges in the administration of justice; subject, indeed,
to their control for the maintenance of order and the
(a) 7 Johnson's cases, The People v. Olcot. Chief-justice Kent says,
" the power of discharging ajury, in a crim nal case, is a highly important
and delicate trust, yet it does exist in cases of extreme and obstinate necessity."
See the other cases there cited.




382              INTRODUCTORY REPORT TO
advancement of justice, but to a legal control, not an arbitrary discretion; their deliberation must be free from the
restraint of physical wants-their determination the result
of reason and conviction. Perhaps, too, the concurrence
of circumstances (a), that probably produced the extraordinary feature in this mode of trial, which requires
unanimity for a verdict, has been more fortunate than
design would probably have been, in adapting it to the
ends of justice in criminal proceedings; for I am inclined
to think, if a bare majority  were sufficient to  give a
verdict, that in a secret consultation, where there is no
excitement created by the presence of auditors or by the
prospect of publicity, the decision would, for the most
part, be made merely by ascertaining the number of
members on each side, without that discussion which is so
necessary to elicit truth. Indeed, I have been told by
those who have served frequently on juries, and I have
made the inquiry in different states, that the first thing
generally done, after they retire, is, previous to any
debate, to take a vote on the question, and a division of
opinion always, under the present system, leads to a revisal
of the testimony and a discussion of the arguments that
have been offered; whereas, if a majority were to decide,
the vote would have decided the cause. Another consideration, also, must have some weight in favour of the
verdict by unanimity: the evidence that subjects a citizen
to the serious consequences of conviction for an offence,
ought to be so clear as to convince the understandings of
all; if then it should fail to convince one-fourth, or any
other given proportion of the jury, the probability is, that
(a) It has been conjectured (and I think with reason) that the unanimity
afterwards required formed no part of the primitive institution of juries,
which originally, it is argued from the analogy of grand juries, the grand
assize and sheriffs' inquests, must have consisted, like them, of twentythree, a majority of the whole number (twelve) being necessary for a
decision; that afterwards, at some unknown period, probably when suits
began to multiply and the attendance of so many jurors was found burthensome, the practice of summoning only twelve was introduced, but
that the concurrence of the same majority of twelve continued to be
required.




THE CODE OF PROCEDURE.           383
its impression would be the same on the rest of the community; and the conviction of a man, whom one-fourth or
one-tenth of his fellow-citizens believed to be innocent,
could not but have effects upon the confidence which
ought to be reposed in the administration of justice more
injurious than his acquittal could be, if, although really
guilty, he should be pronounced innocent by a unanimous
verdict. Reverse the case, and suppose three, or two, or
even a single one, of the jury so perfectly convinced, from
the evidence, that the defendant has committed the crime,
as to be ready to attest his conviction under the sanction
of an oath, and consequently refusing to join in the verdict
of acquittal, while the rest of the jury doubt his guilt or
even believe him to be innocent: to acquit him under such
circumstances, would neither restore him to society with
the pure reputation that every man, who has been pronounced innocent by his fellow-citizens, ought to enjoy, nor
would it remove the alarm which his enlargement would
create in a community, a large proportion of which still believed him guilty, and, of course, encouraged by impunity,
ready to repeat his former crime. Thus, whether we consider the effect of an acquittal or conviction by less than
the whole number of the jury, upon the community, or the
accused, upon the administration of justice, or its reputation, we find nearly the same objections to making any
change. If the defendant is acquitted, he returns with a
tarnished reputation, and the community is not relieved
from their alarm. If he is convicted, the chance of his
being innocent is increased in proportion to the number of
the jury who believed him so; and the same proportion of
his fellow-citizens participating in this belief, will arraign
the justice of their country, and consider him upon whom
it has been exercised as an innocent victim, not a guilty
object of just punishment. In the actual administration
of the laws, we have seen the effect it will produce, of a
reliance upon first and cursory impressions, a neglect of
due discussion, and a careless decision by shifting the
responsibility upon a majority, who act in secret, and
whose names are not distinguished from those of their




384            INTRODUCTORY REPORT TO
fellows. Where all convict, or all acquit, there is responsibility; upon a secret majority there is none; and to
make them record their names and votes, or to give
publicity to all their deliberations, would be attended with
inconveniences too obvious to be detailed. However just
in itself, no system of criminal procedure can be good
which does not create in the mass of the people a belief
that he who is acquitted under it is innocent, and that no
punishment can be inflicted but on the guilty. This
belief constitutes the reputation of judicial proceeding, and
it is as necessary to this branch of government as good
character is to individuals; but we -have seen that it will
be greatly impaired by any other course than that of
requiring unanimity in the jury that decides in criminal
cases. It is not my intention to discuss its propriety in
those of a civil nature further than to say, that most of
the reasons I have urged will not apply to the latter. I
have dwelt longer on this subject than I should have
done, if I had not found a disposition in the friends of this
institution to rest the defence of this particular feature on
its antiquity, rather than its wisdom or its use; and in its
enemies, to urge this characteristic as an unanswerable
objection to the jury trial in its present form. The legislature will judge whether it has been wisely preserved or
not. This discussion has rather anticipated on the regular
course of this review, the natural order of which is to
follow that of the different chapters of the work; one,
which has before been cursorily mentioned is connected
with the subject we have just left: it regulates the
manner in which the grand and petit juries are to be
selected-in such a way as to equalize the duty upon all
the citizens capable of performing it, and rendering it the
means of a gradual diffusion of legal and political information through the whole community. The designation is
on the principle, now in such successful operation, of a
mixture of chance and selection, which precludes the
possibility of any favour in empanelling the jury, and
gives little or no opportunity for influence after they are
chosen.




THE CODE OF PROCEDURE.            385
The seventh chapter of this title lays down rules for proceedings in court, previous to the trial.  The first section
gives to the court the discretionary powers of postponing the
trial, whenever such circumstances are made to appear, by
proper proof, as show that justice requires it, but with the
limitation that the defendant, if in custody, must be tried
before the end of the second, or, if on bail, before the end
of the fourth term, unless the delay has taken place at his
instance, or by his fault.
After all the precautions given by the mode of empannelling the jury, it may happen that the forms presented
by law, for returning and selecting the jurors, have not
been observed; that one or more of them may not be
legally qualified to serve on any jury-or, by reason of
interest, partiality, relationship, or some other cause, disqualified to be on the one for which they are drawn. To
secure that impartiality which is so essential to justice, the
law has provided remedies adapted to each of these cases;
they are taken, with but little alterations, from the English
law; the technical terms are preserved; but the-challenge
to the array can, under this system, only be made for a
single cause, that the forms of the law for forming the
panel have not been followed. Where the names were
selected from the community at large, at the discretion
of the returning officer, his interests, enmities and connections with the party, formed so many reasons for making
this challenge; all of which are avoided by our
mode of making out the panel.  Exceptions to particular
jurors remain nearly as under the English law.  The
peremptory challenge, for which the party need assign
no reason, is a wise and humane provision, peculiar,
it is believed, to  the English jurisprudence.  There
are, in life, so many unfriendly feelings, created by
trifles, or for reasons which it would be difficult to
assign, but which destroy the perfect impartiality required
in a judge, that we cannot too much admire the provision
that enables a party to reject him who may be affected
by these feelings, without being questioned as to his motive.
Considering the little chance there is, under our plan of
2B




386           INTRODUCTORY REPORT TO
preparing the panel, that any great number of persons
unfavourably disposed to any individual accused could be
found on it, it was thought that giving the privilege of
challenge to nine jurors peremptorily, was a sufficient extension. The public prosecutor has the same right, but
extended only to three jurors; the reason for this restriction is obvious; the prejudice against the public can be
supposed, and the only undue affection of the mind to be
guarded against by the prosecution, is favour to the defendant, which, if made apparent by evidence or by the
declaration of the juror, is a disqualification under another
head,-the challenge for cause; this may be made both
by the defendant and the prosecutor, and, of course, has no
restriction as to number.  The reasons for which it may
be made, are set forth at length, and embrace every fact
or opinion that can show the slightest bias for or against
the prisoner; and the mode of trying the facts which
evince this bias, or the disqualifying operation they may
have on the jurors, is prescribed.
3'The next chapter, which directs the mode of proceeding
on the trial, contains some provisions which call for attention. The jurors are drawn by lot, not in the order they
stand on the panel; a different practice had obtained in
our courts, which it was thought proper to correct, being
a deviation from the English law, and liable to obvious
abuse. Any number of jurors, less than twelve, that may
be agreed on between the prosecutor and the defendant,
may try a misdemeanor, for the purpose of avoiding delay
in causes of little importance, wherein a speedy decision
may sometimes avoid inconveniences greater than the
punishment of the offence, if the party be found guilty;
but it is not allowed in cases of crime, in which the party
can neither renounce the trial by jury, nor modify it, for
reasons which have been already stated at large. The
order in which the case is opened to the jury, and the
proof introduced, is the same as that now in use; but a
material change is made, by giving the closing argument
to the defendant. It was thought that this was proper
and just, because it is an advantage, that is to say, a




THE CODE OF PROCEDURE.           387
benefit to one party, that the other does not and cannot,
from the nature of things, enjoy. To whom shall this
be given, to the accuser or the accused, to him who asserts
or him who denies? Humanity and justice seem to dictate
the answer. Every address to a judge must be supposed
to contain a new allegation of fact, a new argument, or a
new answer to rebut those which have been offered on the
other side; to close the debate, therefore, without suffering the accused to reply to such allegation or argument,
would be in so much as regards it, to decide on his case
without hearing him. The same thing may be said of the
prosecution. The remedy would be to suffer the argument
to go on until both parties declared they had nothing
further to say; but this would rarely happen, and never
until the discussion had been protracted to a length so
highly inconvenient as not to be permitted. It seems,
then, as has been said, that the nature of the case imposes
the necessity of giving this advantage to the one party or
the other.  To give it to the prosecution, sometimes
defeats the ends of justice, by enlisting the feeling of
humanity on the side of the accused. There is in human
nature, when not perverted, a feeling repugnant to oppression, which generally supposes power to be wrong, and
ascribes innocence to weakness whenever they come in
competition with each other; and few cases give such
scope to the imagination to exert itself in this way, as that
of a criminal on his trial-squalid in his appearance, his
body debilitated by confinement, his mind weakened by
misery or conscious guilt, abandoned by all the world, he
stands alone, to contend with the fearful odds that are
arrayed against him. It is true he has counsel assigned
him; but here again the same feelings operate to lead the
judgment astray. This counsel is generally the youngest
counsellor at the bar, who is thus made to enter the lists
with one of the highest abilities and standing, with a reputation so well established as to have made him the choice
of government as the depository of its interests. If you
add to all this, the decided advantage of the closing argument, given to a practised advocate, whom long habit has




388           INTRODUCTORY REPORT TO
taught to avail himself of every weak argument or suspicious fact, and a zeal in the performance of his duty has
taught to believe it proper to do so;-do this, and of two
opposite effects one must be produced, both injurious to
the fair administration of justice: either the jury will be
swayed by the sentiment I have endeavoured to describe,
and feel an undue bias in favour of the prisoner; or if this
fails to act, the last impression, given with the force of
eloquence and professional skill, may, in doubtful cases,
have injurious consequences to the innocent. But give
the last word to the accused, and you will do little more
than counterbalance the disadvantages inseparable from
his situation; while, by this show of humanity and disdain
of using the power in your hands, you neutralize the
sentiment that would otherwise be felt in his favour. The
provision here recommended makes part of the French
code of criminal procedure, and it is said to have, in
practice, the most beneficial effects.
Another change, of the same character with the one last
mentioned, was noticed in the Report on the Plan of a
Penal Code made in 1822 (a), which received the unanimous approbation of the legislature; yet it has been made
the ground-work of an attempt to prejudice the public
mind against the work and its author, as if it were a design
to lessen the dignity of the judiciary branch of our government, suggested by a spirit of hostility to that department,
or of personal enmity to those who fill it. To repel this is
necessary, in reference both to the objection itself and the
motives that are imputed.
A system of penal law, containing principles or provisions
injurious to the power upon which alone it must depend for
its execution, would be an absurdity too gross even for
imbecility to produce; and before it is fixed on the code
I have now the honour to offer, it ought to be strictly
examined.  The obnoxious article is in the following
words (b)': "When the pleadings are finished, the judge
shall give his charge to the jury, in which he shall state to
(a) Page 69.          (b) Code of Procedure, b. ii. c 8.




THE CODE OF PROCEDURE.            389
them all such matters of law as he shall think necessary
for their information in giving their verdict; but he shall
not recapitulate the testimony unless requested so to do
by one or more of the jurors, if there should be any difference of opinion between them as to any particular part
of the testimony, and then he shall confine his information to the part on which information is required;
being the intent of this article, that the jury shall
decide all questions of fact, in which is included the
credit due to the witnesses who have sworn, unbiassed
by the opinion of the court." This is the text. I add
the reasons as they are given in the first report, that
the legislature may see whether the provision was not
dictated by the exalted opinion of the judicial character, which, in its purity, it deserves; by a desire to
prevent any encroachment by the bench on that feature in
our jurisprudence which assigns to the judges the decision
of questions of law, to the jury those of fact; and whether
in its operation it will not save the judges from degrading
altercation, render juries more independent and more attentive to their great duties, and exalt rather than debase the
judicial character, and preserve unimpaired the distinctive
characters of the jury and the bench.
This is the extract from the Report. "Another article,
applicable to the trial, restricts the charge of the judge to
an opinion of the law, and allows a repetition of the evidence only when required by the jury, or any one of them.
The practice of repeating all the testimony from notes,
always, from the nature of things, imperfectly, not seldom
inaccurately, and sometimes carelessly taken, has a double
disadvantage; it makes the jurors, who depend more on
the judge's notes than on their own memory, inattentive
to the evidence, and it gives them an imperfect copy of
that which the nature of the trial by jury requires they
should record on their own minds. Forced to rely upon
themselves, the necessity will quicken their attention, and
it will be only when they disagree in their recollection
that recourse will be had to the notes of the judge. There
is also another and more cogent reason for the restriction.




390             INTRODUCTORY REPORT TO
Judges are generally men who have grown old in the
practice at the bar. With the knowledge which this experience gives, they also acquire a habit, very difficult to
be shaken off, that of taking a side in every question that
they hear debated; and when the mind is once enlisted,
their passions, prejudices, and their professional ingenuity
are always arrayed on the same side, and furnish arms for
the contest; neutrality cannot, under these circumstances,
be expected; but the law should limit, as much as possible,
the evil that this almost inevitable state of things must
produce. In the theory of our law, judges are the counsel
for the accused; in the practice, they are, with a few
honourable exceptions, his most virulent (a) prosecutors.
The true principles of criminal jurisprudence require, that
he should be neither. Perfect impartiality is inconsistent
with these duties. A good judge should have no wish
that the guilty should escape, or that the innocent should
suffer; no false pity, no undue severity should bias the
unshaken rectitude of his judgment; calm in deliberation,
firm in resolve, patient in investigating the truth, tenacious
of it when discovered; he should join urbanity of manners
to dignity of demeanour, and an integrity above suspicion
to learning and talent; such a judge is what, according to
the structure of our courts, he ought to be-the protector,
not the advocate, of the accused-his judge, not his
accuser; and while executing these functions, he is the
organ by which the sacred will of the law is pronounced.
Uttered by such a voice, it will be heard, respected, felt,
obeyed. But impose on him the task of argument, of
debate; degrade him from the bench to the bar; suffer
him to overpower the accused with his influence, or to
enter the lists with his advocate, to carry on the conflict of
sophisms, of angry argument, of tart replies, and all the
wordy war of forensic debate: suffer him to do this, and
his dignity is lost, his decrees are no longer considered as
(a) The conduct of some judges would justify this epithet; but, on
reflection, I regret that it has been so generally applied as is done
in the text; zealous would have better expressed the idea I meant to
convey.




THE CODE OF PROCEDURE.            391
the oracles of the law; they are submitted to, but not
respected; and even the triumph of his eloquence or
ingenuity, in the conviction of the accused, must be
lessened by the suspicion that it has owed its success to
official influence and the privilege of arguing without reply.
For these reasons the judge is forbidden to express any
opinion on the facts which are alleged in evidence, much
less to address any argument to the jury; but his functions are confined to expounding the law, and stating the
points of evidence on which the recollection of the members of the jury may differ."
In speaking of the formation and functions of juries, the
greater part of that which relates to verdicts, the subject
of the next chapter, was anticipated. Some articles
deserve consideration.  The term, ofences of the same
nature, frequently occurs in this system, and it is important
to keep in mind the sense in which it is declared to be
used. Offences, we must remember, were arranged in
relation to this object under a variety of heads; as offences
against person, property, reputation, and the like. All
offences arranged under the same head, are offences of the
same nature: of these, some are higher, others lower in
degree; the lowest being the first in numerical order, and
ascending on a scale prepared by a view of the injurious
effects of each offence combined with the degree of moral
depravity evinced in, or usually attendant on, its commission. This explanation is necessary to an understanding
of the power, given to the jury, to find the defendant guilty
of a lower offence, of the same nature with the one charged
in the indictment, provided that the lower offence be
produced by the same circumstances; thus, if one be indicted
for murder, the jury may convict of manslaughter or
negligent homicide in any of the degrees; if he be indicted
for battery or theft, aggravated by any other circumstances
which enhance the guilt of the offender, the jury may
convict of any of those offences of the same nature, which
are lower in the scale of crime; but it must be the same
homicide, the same battery, the same theft, that is charged
in the indictment. On the contrary, on an indictment for




392            INTRODUCTORY REPORT TO
negligent homicide in the first degree, the party may not
be convicted of manslaughter, murder, or any of the other
degrees of homicide; nor, if indicted for simple theft, can
he be found guilty of robbery; but if on the trial the
evidence is found to support a charge of a higher degree
than the one set forth in the indictment, the court is
directed to discharge the jury and send the witnesses to
the grand jury, for the purpose of having an indictment
preferred for the higher offence.
In cases of acquittal for insanity, that fact is directed
to be certified, and the court is empowered to take proper
measures for the confinement of the party or his delivery
to his relations.
In the mode in which verdicts are taken, at present, on
charges of forgery, a difficulty sometimes arises, where
there is an acquittal, to know on what grounds the decision
was made; whether they believe that the instrument was
forged, but that the defendant was not the person guilty
of the crime; or that the instrument was made by the
person whose act it purported to be, and consequently that
no crime had been committed. By the code, whenever
the acquittal is made on the last-mentioned ground, the
jury are directed to declare, and the court to record it; so
that the finding may serve as an authority for the person,
whose property the instrument is, to receive it. In the
first case, it remains in the hands of the proper officer as
the means of prosecuting the offender, whenever he is discovered. But the court is authorised to make such order
respecting it, as may be required for the ends of justice, in
case any civil suit should be commenced which may make
its production necessary.
In cases of conviction, if the court think the jury have
mistaken the law, they may order them to reconsider their
verdict, after giving them an explanation of the law; but
they have not this power given to them where there has
been a verdict of acquittal. Directions are given for ascertaining whether the assent of each juror has been given to
the verdict declared by the foreman, and for recording it.
When the verdict of acquittal is entered and recorded, the




THE CODE OF PROCEDURE.            393
defendant is entitled to his immediate discharge, without
any detention for fees, costs, for any expenses incurred by
his confinement, except only in the following cases: where
other charges are legally exhibited against him; where the
public prosecutor requires a detention not exceeding twelve
hours, to frame such charge on an official allegation to the
court, that he has the evidence to justify it; or on the
allegation of sufficient causes for a new trial if properly
supported by evidence. The causes that are deemed
sufficient are precisely enumerated, and all are founded on
some malpractice of the defendant, in producing suborned
witnesses, or forged papers-in preventing, by fraud or
force, the attendance of the witnesses for the prosecutionin giving evidence out of court to the jury —in bribing a
juror, or causing an illegal panel to be returned. A much
longer list of sufficient reasons is given for setting aside the
verdict when it is one of conviction; and the mode is
pointed out by which the facts, in either case, are to be
substantiated. The long title of arrest of judgment, under
our present system, is abridged to a short chapter; and all
the causes for which the defendant may now hope for
impunity, after his guilt has been ascertained, are reduced
to a single one-that the act of accusation does not contain
the allegation of any fact; or any fact coupled with an
intent, that is by law created an offence. But the
allowance of the motion in arrest of judgment, only places
the party in the situation in which he was before the
indictment was found-liable to be again indicted, if the
evidence is sufficient for that purpose. If the code has
been supposed too favourable to the accused, in some of its
features, it has, on the contrary, been considered as too
severe in this; but after the best reflection my mind has
been able to give to the subject, it can perceive no injury
but to the guilty in thus restraining the effects of allowing
a motion in arrest of judgment, nor any unnecessary
vexation even to them. Suppose the case of one brought
to trial on an indictment which charges facts that do not
amount to an offence; if this defect had been pointed out
before the trial, no one supposes that it ought to operate




394           INTRODUCTORY REPORT TO
as a discharge from further prosecution. Why should it,
after a jury have given their sanction to the truth of the
facts, and after the defendant has purposely, perhaps,
omitted to avail himself of the exception? No good
reason can be alleged: even the maxim that no one shall
twice be put in jeopardy, perverted as it has been, cannot
be brought to bear on the question; for surely no one can
be said to be put in jeopardy by a trial for facts not
criminal in themselves, and which he might have confessed
without incurring any penalty whatever.-Three days,
after a verdict of conviction, are allowed for making a
motion in arrest of judgment or for a new trial; at the
expiration of which time, the prisoner is to be brought into
court for sentence: previous to pronouncing it, the prisoner
must be interrogated to know whether he can allege any
cause why judgment should not be given.  The several
matters which it will avail him to show in answer to this
interpellation are only four: a pardon-insanity-inevitable accident, that prevented a motion for a new trial or
in arrest of judgment within the three days-or a denial
that he is the person convicted. The mode in which these
several allegations are to be substantiated and disposed of
is pointed out; and previous to the sentence it is provided
that such matters in aggravation, as were not necessary to
be stated in the indictment, may be shown by the prosecution-and such in extenuation, by the defendant, as would
not, on the trial, have proved him to have been entirely
innocent.
Before we consider the matters incident to the judgment, it may be proper to review the provisions which
characterise the previous proceedings, and which were
framed with the view of depriving offenders of every
reasonable hope of escaping from defects of form, an inestimable advantage in criminal procedure; but which
would be purchased too dear if attained at the expense of
unnecessary risk to the innocent, or any vexation that may
be avoided to the party, whether guilty or innocent. As
the law is now administered, there is a certain class of
defects, not very clearly defined, which are called defects




THE CODE OF PROCEDURE.           395
of substance; for these the defendant may move to have
the indictment quashed, that is, declared to be void, before
the trial; or he may take the chance of a verdict in his
favour, and if that hope fail, he may move to arrest the
judgment after a verdict against him. This latter course
he is always advised to pursue, if his advocate thinks the
objection a good one, because the effect of quashing the
indictment leaves him liable to a renewal of the prosecution; but when the judgment is arrested, he is for ever
discharged, although his guilt be apparent. Now, most of
these things, called defects of substance, are in reality
nothing more than mere defects of form. Sometimes the
omission of writing the name of the county in the margin
of the indictment, although it be stated in the body of the
instrument itself; sometimes not putting it in the indictment, although it be in the margin, and other omissions of
the like nature; the variance of a letter between the
original and the copy of an instrument set forth in the
indictment; sometimes even of a comma, has been held a
sufficient cause of setting aside a conviction and discharging the guilty convict without punishment. In England
and in this state, which, as we have seen, are governed as
to certain crimes by the same law, any defect of form
whatever may produce this effect.  I say may produce it,
because this, like other points of practice, depends very
much on the will of the judge; the law having varied in
this respect, not by the act of the legislature, but by the
changing decisions of the courts; for Sir M. Hale laments,
that "that strictness has grown to be a blemish and inconvenience in the law and the administration thereof;
for that more offenders escape, by the over easy ear given
to exceptions in indictments, than by their own innocence."
Here we have the highest authority, not only for the existence of the evil, but for the fact of its being produced by
the decisions of the court, not by any positive law; and
consequently, if one set of judges have altered the law by
being over easy in listening to exceptions, other judges
may restore it to its original state in which it was before
the " strictness grew to be a blemish," or they will have




396            INTRODUCTORY REPORT TO
a plausible, if not a legal reason for increasing that strictness, because it is expressly stated to be law (a), that none
of the statutes, which allow amendment in civil cases,
extend to those of a criminal nature. It is of little consequence, however, to inquire from what cause this strictness, so injurious to the administration of justice, proceeds,
provided we guard against its effects in future. This has
been attempted not by abolishing the necessity for forms,
but by supplying them whenever they have been omitted,
and amending them when they are defective. The general
enunciation of this feature in the code was so much
assailed by the allegation, that allowing the amendments
would enable the prosecuting officer to harass by charges
that might surprise the defendant to his vexation and
injury. An inspection of the provisions by which this
characteristic in the plan is to be carried into execution,
it is confidently believed, will obviate that objection; no
amendment materially altering the charge can be made,
but either by the agency of the grand jury, which would
never lend itself to vexatious proceedings, or by the act
of the defendant himself, when he points out an error
arising from misnomer, inaccurate copies, or defects of this
nature. Innocence has nothing to fear, nothing to complain of, from this proceeding; guilt, everything to
dread; public justice, everything to gain. I consider the
adoption of this part of the code so essential to the success of the whole, that I must be excused for pressing
the strict examination of it upon the attention of the
legislature.  Nothing so much fosters the growth of
crimes, as the hope in the culprit that some defect of
form will enable him to escape; and nothing encourages
that hope so much as the numerous and sometimes
frivolous objections that are allowed; and this is called
the tenderness and humanity of the law!-when, in fact,
it is, in the words of Sir Matthew Hale, its "greatest
blemish and inconvenience." The character of humanity
must be acquired, not by facilitating the impunity of
(a) 4 Black. Com. 875,




THE CODE OF PROCEDURE.           397
offenders, but by the strict infliction of mild punishments,
when guilt has been proved; and it is a strange tenderness
to boast of, which suffers a villain to escape his punishment because a clerk has omitted a word, or inserted one
too many, in copying an indictment.
We come now to the consummation of the judicial
authority in its operation upon offences. The functions of
the judge cease when he has pronounced the sentence,
unless extraordinary circumstances should require him to
communicate with the chief magistrate, in relation to an
application for pardon; but even then, the duty he performs is that of a witness of facts disclosed on the trial,
rather than that of a judge. This last office is also the
most important. In a system of penal law, which has
fine and imprisonment for its chief sanctions, a great scope
must be allowed for the discretion of the judge. The
circumstances which aggravate or extenuate an offence,
which make a punishment ruin to one individual which
would not be felt by another, are too numerous to be detailed, and too much dependent on events to be foreseen.
But much may be done, although we confess our inability
to do all, and we ought to advance in the path of improvement, although we despair of its leading us to perfection.
We have prescribed limits to the discretion of the judge,
because we cannot fill up the interval by applying our
scale to unknown events.  The combination of those
events may produce different degrees of depravity for
which we cannot anticipate the exact punishment that
ought to be applied; but we can foresee and can enumerate certain probable circumstances in the commission of
every offence, which ought to aggravate or lessen the
punishment, although we cannot direct in what precise
degree they ought to have that effect. This has been
done in the code now offered to you. It contains two
opposite details of circumstances, which ought to increase
above, and those which ought to diminish below the
medium rate of punishment, which is declared to be that
which ought to be inflicted where none of these circumstances exist. Thus, if the code direct that the punish



398            INTRODUCTORY REPORT TO
ment of an offence shall be fine, not less than one hundred
nor more than three hundred dollars; the medium is two
hundred, which it is the duty of the judge to award, if
there be no circumstances of extenuation or aggravation.
The nature and extent of the obligation arising from this
address to the judgment of the court, is fully explained in
the text, and the reason for resorting to it has more than
once been adverted to in the report.
The fourteenth chapter is devoted to the forms of conducting the ordinary business of courts. One of the most
important of these, is the oath or affirmation to be administered to jurors and witnesses; those now in use to
officers, are, for reasons that will be given, abolished.
These engagements are either promissory or declaratory;
the juror's oath being of the first, that of the witnesses of
the last description: a breach of the promissory oath not
incurring, like that of the other, the punishment of perjury,
as we have seen in the Penal Code. Some changes having
been proposed under this head, it will be necessary to
make a brief statement of the reasons which have produced
them. The necessity of providing some test for the truth of
declarations which were to operate as judicial proof, and
some bond for the performance of promises, in a very
early state of society, suggested, on him who should be
guilty of a breach of such engagement, an imprecation of
divine displeasure; which was thought to be inevitable,
when the appeal was voluntarily made by the party upon
whom the vengeance of heaven was to fall, if his promise
was broken, or his declaration false.  A  belief in a
Supreme Being, and in his agency in punishing evil and
rewarding virtue, either in this life or another, was essential
to this religious sanction of an oath; as it was the first,
so it has generally been esteemed the most powerful;
another, however, may be said to be inseparable from the
first. The sacrilegious wretch, who had by his broken
vows incurred the vengeance of God, could not retain the
good opinion of man, and another surety was added in the
loss of reputation, which would be incurred by the perjurer.
The chastisement which he had invoked upon his head, was




THE CODE OF PROCEDURE.             399
observed not always to follow his guilt in this world, and
the fear of that which might follow in the world to come
was weakened by doubt, by irreligion, and the prevalence
which present advantage generally has over distant and
uncertain evil; and it became necessary to add the temporal penalties denounced by human laws against perjury;
thus completing the triple tie of the religious, honorary,
and civil sanctions to the obligations of an oath. Some
sects, from religious principles, and some writers, from a
-specious theory, have rejected the religious sanction: the
first, because, according to their tenets, it is contrary to
the express precept of the founder of our holy religion;
the second, for reasons which it may be useful to examine.
Religious scruples will with difficulty yield to civil laws,
and where their indulgence does not operate any great
evil to society, a wise legislator will not attempt to overcome them. Throughout the United States, therefore,
those Christians who cannot conscientiously take an oath,
have the same credit given to their affirmation; which
derives its whole force from its civil and honorary obligation. Those who are for abolishing the religious sanction,
say, that it is not only useless but injurious, and even
profane: useless, because where religious motives produce
a determination to tell the truth, they will always operate,
whatever be the form of the engagement-and where there
is no religion, the form can have no effect. Injurious, because it creates a false confidence in the declaration of one
who has no religious sentiment, and adds nothing to the
credit of him who has; because religion cannot be introduced in civil institutions without weakening their effect;
because, with many, religion consists in form, and if that
form be varied in the slightest degree, the religious obligation is not incurred, and the other obligations, being considered as inferior, are overlooked; and because the oath,
being a religious ceremony, was subject to ecclesiastical
control, might be dispensed with, and its breach pardoned
or expiated (a). Profane, not only because it is in opposi(a) Dumont gives an extraordinary instance of this power. Clement VT.,
he says, granted to John III. of France, and Jane his wife, and to all




400            INTRODUCTORY REPORT TO
tion to the plain and express command of the Scripture,
but because it supposes a power in him who imposes, or
him who takes the oath, to direct Almighty vengeance at
his pleasure, and often for trifling or even unworthy
objects. When properly developed and coolly considered,
these objections have weight; and if I were now, for the
first time, devising the formula of a judicial asseveration to
declare the truth, I think I should omit the conditional
renunciation of God's favour, which it now contains. The
general impression now existing of its necessity, the abandonment of all pretension to right by any ecclesiastical
power in our day to dispense with its obligation, and the
danger of a sudden change, have combined to induce me
to retain this part of the oath in ordinary cases; but with
the proviso of extending the right of dispensing with it in
favour of all those who declare they have religious scruples,
in the same manner that the same dispensation is now
given to Quakers and Memnonists.  But while this part
of the form has been retained, it was to be feared, and
experience shows that there is some ground for the apprehension, that there are men who do not feel the force of
this obligation, and are ready to risk the legal consequences,
but who yet might be restrained if an address were expressly made to their honour and integrity. There are
perverse and extraordinary ideas entertained on this subject: one will conceive the oath not binding on his conscience, if administered on any other book than the New
Testament; a Jew may think it of no force unless the Old
be presented to him; this man conceives himself obliged
to tell the truth only when he declares that he will do so
with uplifted hand; another, who does not mind kissing
the book, as he irreverently styles it, will be scrupulously
exact in what he declares upon his honour. These considerations have induced me to incorporate into the form
of the oath a clause to bind those of the last description.
their successors, the right, without incurring any sin, to violate their
promises and oaths, as well those they had already made as those they
might thereafter make, provided it was not their interest to keep them,
and provided also that they commuted the obligation in some work of piety.




THE CODE OF PROCEDURE.           401
As has been observed, all persons belonging to any
sect, having religious scruples to take an oath, may substitute an affirmation. The declaration of the party that
he does belong to such sect is sufficient evidence of the fact;
and although that declaration be untrue, the breach of the
affirmation carries with it the consequences that the breach
of an oath would have done.
A clause is added to the affirmation referring expressly
to its legal sanction.
To avoid the frequent repetition of oaths, in judicial
proceedings, none are administered to a sworn officer when
called on to do a particular duty, such as going out with a
juror, or the like.
To give greater solemnity to the obligation, the form is
repeated by the person to whom it is administered, during
which strict silence is to be observed by all those not
concerned in taking or administering it, and no other
business is to be transacted in court during the ceremony.
The oaths and affirmations of jurors and witnesses are so
framed, as to bring their respective duties forcibly before
them, as well as the penalties attending a neglect of their
performance; and an endeavour is made to enforce the
necessity of preserving the requisite solemnity in a ceremonial generally treated with the utmost levity, but which
requires every aid that an imposing form can give to
enforce the idea of its obligation. One peculiarity in the
oath of a witness ought, perhaps, to be pointed out. At
present he is sworn to declare the "whole truth," yet
when he proceeds to comply with this obligation, he is,
perhaps, stopped by the counsel or the court, and told,
" what you are now about to say is not legal evidence, and
although it is part of the truth, the whole of which you
have sworn to tell, yet you are not permitted to tell what
we have obliged you to swear that you would tell." This
incongruity is remedied by a clause in the proposed form
of the oath.
The three remaining sections of this chapter regulate the
manner of opening and adjourning the court, keeping the
minutes, calling the jurors, witnesses and officers, and
20




402              INTRODUCTORY REPORT TO
imposing fines for their non-attendance; and to supply any
omission in this part of the code, authority is given to the
courts to make additional rules of practice; but they are
to be submitted immediately after to the legislature, to the
end that they may prevent any infringement of the law,
and preserve a uniformity in the form of proceeding in all
the different courts.
The necessary officers of the courts are enumerated in a
succeeding chapter, and their several duties specially
pointed out. The only addition to those now employed, is
the reporter; his duties are, to make reports of all causes
that are tried, and all points of law that are determined in
the court, and to publish them at stated times, and to
make regular returns of all commitments, accusations,
indictments, informations and trials, in such form as to
give every desirable information of the state of crime and
criminal jurisprudence in his district. These returns are
to be made to the governor, to be by him laid before the
legislature. A mass of information will thus be collected,
which will be of the utmost value in future legislation (a).
Although publicity is of the highest importance in the
administration of justice, yet public morals require that
certain investigations should form exceptions to this rule.
A chapter, therefore, provides that, in certain enumerated
cases, the details of which would only foster passions
injurious to society, or wound the feelings of the innocent
connexions of the parties, no persons but the necessary
attendants and officers of the court, the witnesses, jurors,
and a limited number of persons indicated by the party
and the prosecutor, shall be admitted at the trial, and that
no report of the details shall be published.
A short chapter directs, that until the system by which
magistrates and officers of justice are remunerated for their
services, by the payment of fees, be abolished, the state,
and not the defendant, shall pay costs in all cases of dis(a) Both in France and in England these returns are considered as of
the highest importance, and the greatest pains are taken to make them as
minute as possible. The tables of the state of crime in France, are more
perfect in their form than any that have any where been produced.




THE CODE OF PROCEDURE.            403
charge for want of prosecution, or on acquittal; and that,
in cases of conviction, the court may either exonerate the
defendant from the payment of them, or make such an
apportionment as may suit the circumstances of the case;
and no person is to be detained for the payment of costs,
until after a discussion of his property, and then only for
the term limited in the case of fines.
This finishes the review of that part of the code which
prescribes the ordinary course of procedure in criminal
trials. The concluding chapter of this title relates to a
subject which could not be brought properly under any of
the preceding heads.
The propriety of allowing any lapse of time to prevent
the prosecution of an offence has frequently been called
in question, and for such cogent reasons as have induced
the allowance of prescription only in the following cases;
misdemeanors for private offences; crimes which can only
be prosecuted on the complaint of designated persons;
attempts to commit crimes when not accompanied by any
offence. This plea is allowed in the first case, because, the
evil of the offence falling chiefly on an individual, it must
be presumed to have been too trivial to attract the notice
of public justice, if it be not prosecuted within the limited
time; but this presumption is rebutted by showing that
the party injured was out of the state, or prevented by force
or threats from making the complaint. The same reason
partially applies to the second case, crimes, which can
only be prosecuted by designated persons; as the prosecution could only be made by them, the delay will be presumed to have arisen either from a determination not to
accuse, or for the purpose of taking some unfair advantage.
The same causes that are enumerated under the third head
destroy the prescription; attempts to commit crimes are
prescribed, because they approach so nearly in their nature
to private misdemeanors, which enjoy that privilege, that
it appeared unjust to make any distinction; but chiefly
because, no offence having been actually committed, and the
sole question being that of intent, great injustice might
ensue from instituting an inquiry of that nature, after a




404           INTRODUCTORY REPORT TO
lapse of many years. All other offences may, at any time,
be prosecuted, because allowing them to be barred would
hold out a reward to ingenious villany and address in
concealment; and, as (a) has been very forcibly expressed,
to show the absurdity of suffering any lapse of time to bring
impunity, only suppose the law conceived in these terms,
"but if the robber, the murderer, the thief, can during
twenty years elude the vigilance of justice, their address
shall be recompensed, their safety assured, and the proceeds
of their crime legalized in their possession."
The third and last title of this book contains directions
for the mode of procedure in cases not immediately connected with the procedure in courts. The first chapter
relates to inquests on dead bodies, found under circumstances that may induce the suspicion of homicide. These
do not materially vary from those now in use. The utility
of this institution is apparent, and has been tested by experience. The publicity of the proceeding destroys unjust
suspicion, which, but for this inquiry, the innocent would
have no means of showing to be false; and it is eminently
calculated to bring the guilty to punishment. The inquiry
immediately made, before any means can be devised for
concealment, the view of the body, the examination ot
skilful professional men, the power to compel the attendance
of witnesses, and the concourse of neighbours and friends,
bringing with them proof of circumstances that would
escape any more tardy or less public inquiry, are most
powerful means for bringing to light crimes often committed against human life. The inquest, however, has not,
as in England, the effect of an indictment, because the
want of time and professional aid frequently render it
defective; but it may be made the foundation for one, and,
with all the proceedings, is to be laid before the grand jury,
in all cases where death is found to have been occasioned
by a crime. The coroner has the same powers conferred,
and duties enjoined, as belong to other magistrates, in cases
of examination, bail and commitment.
(a) Trait6 de Legislation, tom. 1 p. 148.




THE CODE OF PROCEDURE.            405
The second chapter regulates the mode in which the
examination of a body shall be made in cases of suspected
murder. It gives the power to a family meeting, or to a
magistrate, and directs the manner of proceeding in the
investigation. There are no provisions in our law on this
subject, but it is deemed one that required legislative
attention.
The fraudulent appropriation of property found, being
created an offence, distinguished from theft, with which
it is frequently confounded, by extending the doctrine of
constructive possession, it was thought just and requisite
that the law should direct the honest finder in what manner
to proceed, with respect to the property found, so as to
avoid unjust suspicion, by observing the rules, and to
facilitate the conviction of the dishonest by his breach of
them: this forms the subject of the third chapter.
The fourth directs the mode in which vagrancy may be
proved, and under what circumstances vagrants may be
committed to the House of Industry. This class of men,
who hang on to society rather than belong to it, although
not absolutely criminals, are yet so near the verge of it,
and are so generally the nursery for criminals of every
description, that preventive justice is forced, with respect.
to them, to measures not strictly in unison with its usual
course; but this subject will be so fully discussed in the
Introductory Report to the Code of Prison Discipline, to
which it properly belongs, that the legislature are respectfully referred to that part of the system, as well for the
measures recommended for the employment, restraint and
reformation of these people, as for the reasons which
suggested these measures.
In criminal proceedings, no question presents itself which
is, at times, more difficult of solution, or more important to
be accurately answered, than that of alleged insanity.
When it occurs as a defence on a trial of the merits, little
more need be provided by law, than to direct, that when
ascertained to have existed at the time of the act, it takes
away an essential quality of guilt. But when the alienation of mind is alleged to have occurred after the act




406           INTRODUCTORY REPORT TO
but before the trial, after the trial but before the judgment,
after the judgment but before or during the execution of
the sentence, no mode of trial of the fact is provided by
law; and yet, at each of these periods, particular provisions
are necessary, as well to ascertain the fact, as to direct
what is to be the consequence of its being found to exist.
This is done by a chapter in this title, and by it an
omission in our law, important to justice and to humanity,
is supplied.
The Code of Crimes and Punishments having directed,
in order to avoid collusive prosecutions for adultery, that
in all prosecutions for this offence against a supposed
adulterer, the offending wife shall be joined, and having
referred to this code for the manner of conducting it, it is
directed, that where the defendant is so charged, shall
have been cited or arrested, but shall not appear, that an
attorney shall be named to represent him, and that the
trial shall proceed in his absence; and that if he have left
the state, so as not to be served with process, a warrant
shall issue and be renewed from time to time until the trial,
which, if he do not appear, may proceed against the wife
alone.
The collection of small fines, imposed by courts, is not
now sufficiently enforced. The code remedies this defect,
requires frequent returns by the collecting officers, and
makes it the duty of the state treasurer to prosecute such
of them as are delinquent, and to carry all such sums as
may be collected, to the credit of the "Compensation
Fund," which has been referred to in the beginning of
this Report, where it is spoken of as the means of paying
the premiums for extraordinary services and providing the
marks of honorary rewards; it is here also burthened with
an indemnity directed to be paid to all those who shall
receive, on their being discharged before trial of an alleged
offence, a certificate from the judge, or from the jury who
shall acquit them on the trial, that no improper conduct
gave reasonable ground for suspicion. This idemnity is
granted on the ground that society is bound to compensate
all such evils as are necessarily incurred for its safety, where




THE CODE OF PROCEDURE.           407
they are not the result either of an obligation binding on
all the citizens in general, such as assisting the civil officers
in preserving the peace, or of losses so great in amount
and general in their nature as to become too burthensome to
the rest of the community, such as granting indemnity
for the ravages committed by an invading enemy, or
the conflagration of a city to prevent its falling into his
hands. The injury received by a groundless accusation is
of another character. It is not the result of any duty, and
it can be compensated without any great sacrifice. When
the prosecution is malicious as well as ill founded, the state
is exonerated from this burthen, for the loss was not
incurred for its benefit; and the indemnity may be recovered against the malicious prosecutor.  The state is
only bound to pay when there was reasonable ground for
suspicion, but which did not arise from any negligence or
imprudence of the party accused.  The amount of the
compensation is to be fixed by the judge, but under limits
which effectually prevent its being made the object of
collusive speculation, while it affords the relief which
justice requires to the poor and the oppressed.
Four General Provisions are inserted at the conclusion
of this book. By the first it is declared, that no omission
of any matter of form presented in this system, nor any
departure from the forms given for proceeding under it,
shall render the proceeding void, unless it be so specially
provided; or unless the departure from the form has
caused some injury to the party complaining of it. The
insertion of this article is another attempt, and no good
system can contain too many, to counteract the constant
and fatal tendency to sacrifice substance to form. The
second was, perhaps, superfluous; that when a particular
and a general provision conflict, the former must prevail.
A rule of true construction would sufficiently enforce it;
but true rules of construction are not always those that are
adopted. Although a strict adherence to the distribution
of the system would have required that all offences whatever, as well as the punishment assigned to them, should
have found their place in the Code of Crimes and Punish



408           INTRODUCTORY REPORT TO
ments, and not elsewhere; yet it was deemed expedient to
depart from this rule in many cases, where a penalty is
annexed to the non-observance of a rule laid down in any
of the other codes.  The inconvenience of at constant
reference from the one code to the other would have been
an inevitable evil, but one of the least attendant on the
transfer of the definition of the offence to the former.
The two subjects, in their nature distinct, would have
been so amalgamated as to create a greater confusion than
that which it is the intention of the system to correct.
Certain offences, then, being necessarily defined by this
code, and the punishment denounced, the third provision
of this chapter became necessary, which directs that all
offences, created by this code or the Code of Reform and
Prison Discipline, shall be prosecuted and tried in the same
manner with those which are created by the Code of
Crimes and Punishments. The last article gives a rule
for calculating the time allowed by the code for certain
notices and other proceedings.
The concluding book of this code contains forms for all
the proceedings which are directed or authorized by its
preceding parts. In framing them, which has been done
with much care, the object kept constantly in view, was to
unite brevity with so much certainty and precision as
would secure the party from any possibility of mistake as
to the precise fact of which he is accused. If the reporter
has been successful in this, he has attained a most important object, by closing the door against one of the greatest
evils in penal jurisprudence. He offers this branch of the
system, with the same diffidence of his own powers that
attended the presentation of the first; the same hope, that
what is good in it may be preserved, and what is bad
corrected; and the same firm reliance on the industry and
patient research of the legislature in examining, and on
their wisdom in making a decision on its merits.




INTRODUCTORY REPORT
TO
TJHE  CODE  OF  EVIDENCE.








INTRODUCTORY REPORT
TO
THE CODE OF EVIDENCE.
No branch of jurisprudence requires greater certainty
and more simplicity in its provisions, than that of judicial
evidence. But there is none in which so little of either is
to be found. The reason is, that, with fewer exceptions
than exist in any other division of the science, it has been
abandoned to the vacillating authority of decisions, for its
creation and amendment, without any superintendence of
the legislative power. This was a natural consequence of
the transition from the semi-barbarism of the middle ages
to the more improved state of the science in modern
times. During the period when the Divine power was
invoked, and supposed specially to interpose in litigated
questions, by protecting innocence and making justice
prevail in the ordeal and the battle, human testimony
would of course be considered of minor importance. In
proportion, however, as these miraculous interventions of
the Deity ceased to obtain credit, and the agency of
human justice and discretion was called in to supply its
place, it became necessary to consider what evidence ought
to be received in order to direct them. But no legislative
provision had been made for this change, which was
imperceptibly produced as the mists of ignorance and the
veil of superstition were slowly withdrawn. In every
case in which the witness was substituted for the
champion, and the ordeal of justice for that of the
elements, the court was obliged to make some rule for
securing the appearance of the witness; interrogating




412            INTRODUCTORY REPORT TO
him to come at the truth; determining what persons
ought to appear in that character, and what degree
of credit, under different circumstances, was due to their
testimony.
In the earlier periods of jurisprudential history in
Europe, the distinction btween oral and written evidence
can scarcely be observed. But when literary education
became more common, writing was prescribed by the
legislative power, in some cases, as a check upon the inaccuracy of testimonial evidence; and as the few laws it
was found necessary to pass were couched in general terms,
and frequently in obscure language, the judges thought
themselves authorised to supply deficiencies, and sometimes
to restrict what they deemed the too comprehensive words
of the text; and thus the law of written as well as of
testimonial evidence became the creation of judicial decisions, not of legislative acts. It is, however, easier to
trace its origin with tolerable certainty than, with any
probability, to account for some of the extraordinary
features which distinguish it.  There is such a moral
beauty in truth, it is so necessary to us in all our intercourse with each other, that we have beerr endowed by our
beneficent Creator with a love for it, which, if not innate,
is necessarily produced by the circumstances in which he
has placed us (a). Mlan never swerves from truth without some temptation, some real or imaginary good, that
he promises himself from the falsehood. Doubt even on
matters of little moment, is an uneasy sensation: and there
is a corresponding satisfaction in that state of the mind
which results from a conviction of truth; so that, as in the
ordinary affairs of life, no one makes an assertion of fact,
but with the intent of producing belief; so no one hears
it without a desire, sometimes imperceptible and involuntary, to be convinced of its truth or falsehood.  But this
conviction can only be produced by evidence. As long,
therefore, as he is deprived of any evidence which is known
or suspected to exist, so long will the uneasy state of doubt,
(a) In primis, hominis est propria vERI inquisitio atque investigatio. — Cicero.




THE CODE OF EVIDENCE.            413
in a greater or less degree, continue. If this be true in
relation to matters where neither interest nor duty, but a
mere love of truth, call upon us to decide; how much
more strongly will the desire be felt when life or fortune
depends on the correctness of the decision. Yet it is
precisely in cases where this longing after truth should be
gratified, that is to say, in litigated questions, that the
evidence by which it is to be ascertained is most restricted.
Every where else, all sources, even the most suspicious,
are examined; he who is to judge relying on his own
power to discriminate; here alone he is taught to distrust
that power, to reject all evidence that may possibly lead
him astray, and where he cannot be guided by the full
blaze of the noonday sun, to prefer utter darkness to the
twilight, in which he might have discovered his path. To
trace this leading feature in our law of evidence to, its
original causes, would be rather a curious disquisition than
one leading to important practical results.  It most probably is derived to us from the civil and canon law, where
this principle is carried to a most extravagant length; and
where the secret examination of witnesses by judges
unacquainted with the circumstances of the case, made the
risk of deception very great; where there was no confrontation, no personal cross-examination, no publicity, and
where the parties themselves were not allowed to be
present, detection was rendered so difficult, that it afforded
a plausible pretext for absolute exclusion in all suspicious
cases. The compass of this report will only admit of a
reference to such restrictions as now exist, and a notice of
those which it has been deemed necessary to retain or to
abrogate, with the reasons by which the alterations are
supported. These will be developed as we proceed with
the details of the system.
This code begins, as those which preceded it have
done, by an Introductory Title, laying down rules and
making explanations to avoid circumlocution, and to give
the perspicuity necessary to a full understanding of the
subsequent provisions.  Two of the articles are of a
different character, and demand particular notice. They




414               INTRODUCTORY REPORT TO
are intended to check the legislation of the courts, and to
provide for the progressive amelioration of the code by the
General Assembly, the only legitimate power for that
purpose; while the right of pointing out defects, and
suggesting improvements, is conferred on the judges. As
the law formerly stood, the whole law of evidence, with
very few exceptions, was, as we have seen, the work of
the court, over which the legislature very rarely exercised
even a corrective power; more frequently the courts
corrected the statutory provisions; and by their rules of
construction, for enlarging and restricting the operation of
the written law, assumed and exercised, by whatever name
it may be called, a legislative power. As this is a part,
nay, the very foundation of the common law, the observation
is not intended as a reproach to the judiciary of the country
from whence that law is derived. But it cannot be too
often repeated, that in our constitution (a) it is not only
affirmatively declared, that there shall be three separate
branches of government-executive, legislative, and judiciary; but negatively, that the duties of no two of these
branches shall be exercised by the same persons. Every
exercise of legislative power by the judiciary is, in this
state, unconstitutional, and it is the duty of the legislature
to check it. But as all human works are attended with a
greater or less degree of imperfection, it must happen that
the operation of laws will be found to work injustice;
either by embracing, under general expressions, cases not
intended to come within them, or, by a too restricted
phraseology, not providing for other cases which it was
their evident object to include. These defects in laws
gave rise to the rules of construction before alluded to, by
(a) Art 1, ~ 1. The powers of government of the state of Louisiana
shall be divided into three distinct departments, and each of them shall be
confided to a separate body of magistracy, to wit —those which are
legislative, to one-those which are executive, to another-and those
which are judiciary, to another.
~ 2. No person or collection of persons, being one of those departments,
shall exercise any power properly belonging to either of the others, except
in the instances hereinafter expressly directed or permitted.-Constitution
of the State of Louisiana.




THE CODE OF EVIDENCE.            415
one of which the court were directed to place themselves
in the situation of the legislature (b), to inquire whether,
if the case before them had presented itself to the mind of
the lawgiver, he would have extended or restricted the
words of his law so as to provide for it and others of a
similar nature. This is called consulting the spirit of the
statute; and the rule, as I have stated it, is every day
referred to and received in our courts.   While it is
evident that this is the exercise of legislative power,
inasmuch as it extends or restricts the operation of a
statute, it cannot be denied that the defects of all
laws are best discovered in their operation, and that,
as to  all those which relate to jurisprudence, the
judges are the persons best qualified to point them
out, although, by our institutions, they are not authorized to provide the remedy.
The object of the two articles now under consideration
is to secure the advantages to be derived from the experience and wisdom of the judges in the suggestion of
defects, while the remedy is reserved to the legislature, the
only power to which it can consistently with the constitution be referred. The first of these articles relates to cases
in which any positive provision of the code, for the
admission or exclusion of evidence, is found to operate
improperly, either to the prejudice of the accused, or the
ends of public justice in criminal proceedings, or to the
injury of any party in a civil suit. In every such case the
court is directed to make an accurate report of the same to
the legislature, with the reasons for thinking the law
imperfect or unjust in its operation.  Should the general
assembly coincide in opinion with the court, the proper
amendment will be made to the code under its appropriate
head; and, instead of a judicial decision of doubtful
authority, obligatory or not on their successors, or even on
themselves, as they shall think fit, and only to be known
through voluminous and costly reports, we shall have
positive law, easily understood, to be found in its proper
(b) Plowden, 469.




416            INTRODUCTORY REPORT TO
place, comprised in a few lines, and binding on the courts
as well as the community. If, in consequence of such
imperfection, the accused shall have been acquitted, judgment in his favour must be entered without waiting for
any further legislative proceedings, for it would be unjust
to subject an individual to the vexation of a second trial
for a defect in the law, even if the amendment required
should be one that could not come within the description
of a retro-active law. But if the consequence was an
unjust conviction, or verdict in a civil suit, it is directed
that no judgment shall be pronounced until the end of the
session after the report shall have been made; when, if
the provision is altered, new trials shall in both cases be
ordered. If no change is made, it is evidence the legislature do not coincide in opinion with the court, and do
not think the operation of their law improper or unjust;
and as theirs is the supreme will, the courts must carry it
into execution.
The first of these two articles having thus provided for
the reconsideration and amendment of the code, in such
provisions as seem unjust or defective in their operation,
the second, in like manner, gives the remedy for omissions.
In all cases where legislative enactments, or former
decisions, gave no rule on the subject of the admission or
exclusion of evidence, the courts necessarily, as has been
observed, supplied the omission. They were obliged to
admit or reject the evidence offered, and, having no
legislation provided, were forced to decide according to
their discretion, without one. After the adoption of this
article, such an anomaly will no longer exist in our law.
The legislator and the judge will each perform his proper
duties, and no excuse will exist for the one to usurp, or the
other to neglect them; for in every case where evidence is
offered, and no rule is provided to direct the judge whether
to admit or exclude it, legal authority is given him to do
that which is now done without it; and in that case alone
the rule, on which some animadversions have been made,
is sanctioned, and the judge is directed to suppose himself
in the place of the legislator, and to ask what would




THE CODE OF EVIDENCE.            417
probably be his opinion if the case had been presented to
him, and to decide accordingly; but to make report of the
case to the legislature in the manner required by the preceding article, who will in like manner give or refuse their
sanction to the principle adopted by the court, and insert
the affirmative or negative provision in the code. Whatever the legislature do in this last case, will not affect the
decision if in a civil suit; the ends of justice require that
the delay, uncertainty and intrigue, incident to the revision
by the legislature of an adjudged case should be avoided.
The court decides the case before them, but makes no rule
for future cases; that is left to the legislature, whose
proper province it is. But if the decision takes place in a
criminal cause, and in consequence of the admission or
rejection of evidence, not directed by any law, the accused
shall be convicted, it is clear that this conviction will have
taken place under an ex post facto rule, and is, therefore,
illegal. The article consequently provides, that, in such
case, judgment shall be arrested and the defendant
discharged.
These provisions are deemed to be of the highest importance.  They are new, and the attention of the general
assembly is respectfully called to a close consideration of
them. They offer, it is confidently believed, a complete
answer to the objection that has been raised to a written
code, from its rigidity, or what has been, by a celebrated
jurisconsult, called its want of malleability.  It cannot,
indeed, be worked into any kind of shape that the discretion of a judge, well or ill directed, may deem necessary;
but, by this means it may be accommodated to the
changes which take place in society, and adapted to its
wants as they arise, and this more effectually, more constitutionally, and equitably, than by the legislation of
decrees; more effectually, because the sanction of positive
law will not only give it a legitimate, instead of a doubtful authority, but because, being promulgated as a law, it
will be universally known; being concise, it will be easily
understood, and a knowledge of its provisions may be
acquired without expense; more constitutionally, because
2D




418           INTRODUCTORY REPORT TO
it will emanate from the proper department of government; and its superior equity must be apparent, when
we consider that, in the one case, the rule is made and
applied to an existing case, in the other, it has no force
until after its enactment and promulgation. This most
valuable and simple improvement in legislation was recommended in a former report; and the greatest confidence is felt in its efficiency, because, among the number
of lawyers and statesmen to whom it has been proposed,
not one was to be found who raised any other objection,
than that it was a novelty-a characteristic necessarily
attached to every improvement; while to a very large
majority of them it appeared to promise the most important results.
The profound feeling which the reporter has, that the
code he proposes must contain many errors, and that
material omissions may be discovered when it goes into
operation, induces him to urge the adoption of these two
articles with the greater earnestness. The facility they
offer of discovering these errors and imperfections, and
bringing them to the consideration of the legislature, and
the ease with which they can be effectually amended, cannot but lessen the reluctance he would have to propose
any thing of which the correction would be attended with
greater difficulty. He may be allowed, perhaps, to suggest another argument for their adoption, founded on a
feeling different from, but not inconsistent with, that
which he has just expressed. Conscious that there must
be many imperfections in the work, he yet feels a confidence that it is founded on true principles, and that, from
the manner in which they are reduced to precept, the
general effect cannot but be eminently useful, with the
safeguard of these provisions for the gradual perfection of
the system. Therefore, the general assembly incur no
risk in their adoption. Parts of which the utility does
not seem perfectly apparent, may therefore safely be retained, until their operation is seen: that operation cannot be materially injurious, even if these parts are bad.
The evil is instantly perceived, and a check is provided for




THE CODE OF EVIDENCE.            419
their operation on the first case in which they are discovered.
After these introductory articles, we come to the body
of the work.
Evidence is defined to be that which brings, or contributes to bring, the mind to a just conviction of the truth
or falsehood of the fact asserted or denied. Because, in
weak minds, conviction may be produced, by that which,
addressed to an understanding of common force, would
create doubt or conjecture merely; it became necessary to
qualify by the epithet just, the nature of the conviction to
be produced. So far as respects mere speculative opinion,
there can be no danger in leaving the determination of
what may be termed just to each individual's perception of
right and wrong; but, as applied to the determination of
litigated rights, another qualification was necessarily introduced, and under the denomination LEGAL EVIDENCE, that
alone, which is declared by law to be good evidence, forms
the subject of the code.
If evidence may, according to the definition, produce,
or contribute only to produce, conviction, it must, in relation to its effects, have different degrees of force. These
degrees, producing as many different kinds of evidence, are,
under this head, restricted to three, ascending from that
created by mere induction, to that which is, by law,
directed to have the force of complete proof; PRESUMPTIVE,
which, by establishing one fact, renders the existence of
another probable, or, in some cases, certain; DIRECT, which,
if true, establishes the fact in question; and CONCLUSIVE,
which, in special cases, is declared to admit of no contradictory evidence.
Considered in relation to the source from whence it is
derived, evidence is again of two kinds: first, that which
the judge derives from his own knowledge:-secondly, that
which is offered to him from other sources, and this last is
again composed of TESTIMONIAL, SCRIPTORY, and SUBSTANTIVE
evidence.
After these divisions, necessary for the order of the
work, it proceeds with a more full explanation of the




420           INTRODUCTORY REPORT TO
different kinds into which it is distributed, and an
enumeration of the rules applicable to each.
Beginning with the division arising from the source
whence the evidence is derived, a short title declares in
what cases the judge may act from his own knowledge of
the fact on which he is to decide, and in what other cases
that knowledge is to be produced as evidence in the cause.
In the first case it is provided that no judge can act
merely on his own knowledge of the facts, excepting in
those cases in which he is expressly authorized so to do by
law. Those cases it is the province of the Civil and
Criminal Codes, and their respective systems of procedure,
to provide for. Instances, to elucidate the article, are
given in the powers vested in the judge to pronounce on
the authenticity of a record, in the right given him to
commit for an offence, to remove for a disturbance in
court, and to employ the military in aid of the civil
power.  But where the judge  has knowledge of a
material fact, in any case not so specially provided for, he
is to be examined in the same manner as any other
witness; and if he is the sole judge of the court, the
judge of the adjoining district is to try the cause, in the
manner provided for where the judge is interested. Jurors who are acquainted with any material fact, must, in
all cases, be examined to give evidence to their fellows.
In this title, the law is not materially altered.  It is
rendered more definite, and the sanction of written law
is given to that which is now, in some degree, founded in
loose practice.
The next division of evidence, derived from extraneous
sources, is in itself more important, and, in this code, is
especially so, because of the changes which it proposes in
our present system. The first head, that of Testimonial
Evidence, is the one in which these changes are of most
consequence, and, in the opinion of the reporter, most required. They, however, repose on very simple principles,
or, to speak more precisely, on a single principle, and that
one drawn from the very definition of evidence.
The organization of courts, the enumeration of rights,




THE CODE OF EVIDENCE.             421
the means of asserting, with the denunciation of penalties
for infringing them, and the rules of procedure, are only
preparatory steps to the trial, which, in itself, is but the
examination of evidence.  Ultimately, then, the whole
machinery of jurisprudence, in all its branches, is contrived
for the purpose of enabling the judging power to determine on the truth or falsehood of every litigated proposition. This to be done by hearing and examining evidence;
that is to say, hearing and examining every thing that
will contribute to bring the mind to the determination
required. If we refuse to hear what will, in any degree,
produce this effect, we must determine on imperfect evidence; and in proportion to the importance of the matter
thus refused to be heard, must evidently be the chance of
making an incorrect rather than a just determination.
But, as in morals, we are forbidden to do evil that good
may come of it, so, in legislation, we should refrain from
doing that kind of good which may produce more than its
equivalent in evil. The desirable end to be attained by
the admission of every species of evidence, may be more
than counterbalanced, in some instances, by the evil attending it; sometimes, in the shape of inconvenience and
expense inseparable from its procurement; sometimes,
from the danger of error arising from the deceptive nature
of the evidence itself. The great art is to weigh these difficulties, and in those cases where they are most likely to
preponderate, but in no others, to exclude the evidence.
Before we enter into an examination of the provisions
of the code now presented, it will be necessary to examine
those of our present law. On the subject of evidence we
have several different bodies of law to consult; one for
civil cases, a second for a class of offences created under a
particular statute, and a third for all other offences. For
the first, we must consult the civil code; for the
second, the common law of England; for the third, the
laws of Spain (a). On the subject of exclusion, that now
(a) See Introductory Reports, p. 60, et. seq. and p. 157, in the note,
and De Armas's case, 10 Martin's Reports.




422           INTRODUCTORY REPORT TO
under consideration, all these systems materially differ,
and all of them are more or less uncertain in their provisions. By the civil code, the exclusions are, interest,
relationship in the ascending or descending line, connexion in marriage, and the very vague description of
"those whom the law deems infamous." It also forbids
the examination of a counsellor or attorney in order to
obtain a discovery of what has been confided to him by
his client; but somewhat strangely, considering that the
Catholic is the prevalent religion in the country, omits to
provide for the inviolability of religious confession. These
are the only general rules, relating to testimonial evidence in civil cases, that are provided by statute. For
the exclusions in those criminal cases which are punishable
under the statute of 1805, we must refer to the common
law of England. To enumerate them, and note the exceptions with accuracy, would be a difficult, and as far as
the ability and research of the reporter is concerned, an
impracticable task; and without any endeavour to avoid
the reproach of ignorance or want of diligence on the
subject, he may venture to assert, that it has never yet
been satisfactorily performed, as is manifest from the
numerous treatises on the law of evidence which have
appeared, become obsolete, and are replaced by others,
themselves to become antiquated and laid aside whenever
the changing system of decisions establishes new rules or
creates exceptions to those which were in like manner previously established. Fortunately, nothing on this occasion
is required more than a general outline, upon which to
mark the changes that are recommended by the system
now presented.
The circumstances which are generally understood to
cause exclusion by the common law of England are, interest, connexion in marriage, infamy, incredulity as to a
future state of rewards and punishments, the relation
of counsellor or attorney to one of the parties, and
conviction for an infamous crime. To the laws of Spain,
as has been said, and, as is thought, satisfactorily proved
in the Introductory Report to the System  of Penal




THE CODE OF EVIDENCE.            423
Law (a), we must have recourse, in civil cases, to discover
what -is meant by the description in the code of "those
whom the law deems infamous;" and in criminal cases, to
direct us in prosecutions for all those acts which may be
considered offences under the unrepealed Spanish law, and
all those which are created offences by acts subsequent to
the year 1805. The list of exclusions under these last
mentioned laws, is filled to a most enormous length with
every circumstance that can create the slightest suspicion
of partiality, prejudice, or a disposition to falsehood. The
principle of these laws seems to be, that the weakest inducement to utter falsehood is stronger than the greatest
inducement to tell the truth; that all those who are
counted infamous ought never to be believed; and that a
usurer, a comedian, a slanderer, and all the others, who,
by a most extraordinary classification, are involved in the
stigma of infamy, as well as those convicted of crimes,
ought on no occasion, not even for saving the life of the
innocent, or the more favourite object of taking that of the
guilty, to be heard. The intimate friend, the frequent
guest, the near relation, all of whom were most likely to
be acquainted with the circumstances and character of the
parties, or accused, as well as the avowed enemy, were,
or rather, as this is now our law, are, legally, in the cases
above mentioned, excluded.
Without troubling the general assembly with a repetition of the arguments to prove this assertion, I again
refer to that Introductory Report, only observing here,
that it is no answer to say, that those laws do not exist,
because the judges have not yet thought proper to act
upon them. The question is not, what has, but what can
be done: not what good judges have refrained from doing,
from their own sense of right, not from the restriction of
law-but what bad men might do in evil times, under the
sanction of bad laws; or good men, under the impression
that they are bound to execute them.
Omitting the unnecessary task of examining, in detail,
the list of exclusions under the Spanish law, and showing
(a) Pages 103, 104, et seq., and p. 261, in the note.




424           INTRODUCTORY REPORT TO
their absurdity and injustice, I proceed at once to the
examination of those which are acknowledged and enforced
as part of the law of the state.
The first of these disqualifying circumstances, declared
by the code to prevail in civil cases, and making a prominent feature in the common law adopted in criminal
cases by our statute, is interest, which is construed to mean
an eventual gain or loss that may be estimated in money,
by the decision of a cause in which the testimony is pro_
duced. By the code now offered, interest shall no longer
disqualify, but may be proved in order to lessen, in proportion to its magnitude and to the other circumstances of
the case, the credit that may be given to the witness. This
important change demands a full explanation of the reasons
for proposing it. For this purpose it will be necessary to
revert once more to the nature and effect of all exclusions
of testimony. These have been shown to be injurious to
the great object of judicial investigation, the discovery of
the truth. Primafacie, then, there ought to be no exclusion; but, as has been observed, there may be evils attending the admission of certain evidence which may be greater
than any good such evidence could produce in elucidating
the truth. To exclude any species of evidence, therefore,
it must be shown that such attendant evil predominates.
This evil can only be inconvenience and expense in procuring the testimony greater than the advantage to be
derived from its admission; or the probability that, if
admitted, it will tend rather to mislead than to enlighten
the judge. These probabilities must be weighed whenever we come to consider the propriety, or rather the
necessity, for that ought to be evident, of creating a rule
excluding testimony of any one description.
Now let us apply these rules to that which declares an
interested witness inadmissible. This can only be found
on the following suppositions: first, that pecuniary interest
will be sufficient to induce the witness to incur the inevitable embarrassment and difficulty of sustaining an untruth
under the searching trial of a rigorous cross-examination;
attended by the liability, too, of being detected, and of




THE CODE OF EVIDENCE.           425
the consequent punishment and infamy attending a conviction for perjury, in order to have the chance of the advantage he may promise himself from a judgment to be
obtained by his falsehood; for let it be observed, that, if,
on the one hand, there is no certainty of punishment, conviction, or infamy, there is, on the other, no certainty of
securing the advantage that prompts him to encounter the
risk. Secondly, it must be supposed that the falsehood,
thus asserted, will be believed by the judges of the fact.
If not believed, the testimony cannot mislead; and we
may lay down as a rule which admits of very few exceptions, that with the aids of cross-examination, publicity,
and the right of producing counter testimony, the chances
are greatly in favour of truth against deception. On this
head, too, we must not forget that the judge is on his guard
against giving too implicit faith to the witness, because he
is aware of the bias which interest would naturally create.
The argument supposes the interest to be known, for, if
not known, it cannot exclude. Knowing the interest, he
will not only be more inclined, but better enabled, to test
the truth of the testimony by a rigorous investigation;
and what is of more importance, he will be enabled to
judge from the nature and amount of the interest, contrasted with the character of the witness, and other circumstances, what effect it will probably have on the
testimony. These considerations must, therefore, tend to
show, that even in the cases, and it is not denied that they
may exist, where interest may induce a departure from the
truth, the fear of its misleading the judge is greatly exaggerated by those who make it a ground for utter exclusion. The two assumptions, then, necessary to support the
argument, to wit, that interest will always, or even generally, induce the witness to encounter the difficulties and
dangers of asserting a falsehood, and that if it should have
this operation, the falsehood will most probably be believed,
have both been shown to be groundless; and even on this
preliminary statement, the disadvantages of shutting out
the testimony of an interested witness must be apparent:
but many other considerations must be brought into the




426           INTRODUCTORY REPORT TO
account before we strike the balance of good or evil
attending its admission. A most profound writer on this
subject (a) has argued, and with great force, that so far
from leading to deception, the testimony of an interested
witness will, in many cases, bring out the truth by the very
attempts which he makes to conceal it. No more falsehood, he contends, will be uttered than the witness thinks
necessary to obtain the object he has in view: from these
partial disclosures of truth, information of importance
may be derived to corroborate or contradict other evidence; not so much will be uttered as is necessary, if it
be highly improbable, or may, from other circumstances,
create great risk of detection. Truth must supply all
these intervals, and truth, from the lips of an interested
witness, is as valuable as if it were derived from a purer
source; but if he dare not tell the falsehood, because it is
too dangerous or too easy of detection, and will not tell
the truth, because it defeats his interest, he must have
recourse to silence or evasion; and either of these expedients are as sure indications of falsehood, in most instances, as a confession of it would be. Therefore, whether
the interested witness declare the truth or utter a falsehood, or recur to evasion or silence, his evidence will more
probably lead to a just than an erroneous decision. False
testimony is more difficult to frame, and is more easily
detected, than those not conversant with judicial proceedings might imagine. If the witness were at liberty, in
secret and at his leisure, to frame his own story, and state
only such circumstances as his imagination might supply
in a detailed account of all that he thought necessary,
without the fear of confrontation, cross-examination, and
publicity, he would have nothing but his invention to task,
and might, from his own stores, or the suggestion of
parties, frame a consistent tale that might impose on the
judge. But, fortunately, this is not the case; he knows
that the strictest scrutiny awaits every allegation that he
shall make; that his words, and even his silence, will be
(a) Bentham, Rationale of Judicial Evidence.




THE CODE OF EVIDENCE.             427
the subject of the severest animadversion; that his very
looks will not escape the attention of the practised crossquestioner; and that, during his examination, the gaze of
a hundred eyes will be upon him, and he cannot but fear
that some one will start forth from the crowd to detect his
falsehood. All this he must anticipate; and under these
apprehensions it will require more ready invention, more
self-possession, and more courage than falls to the share of
ordinary men to persevere in a feigned statement, and
render it so consistent as to give it the semblance of truth;
so that, if these well-founded fears do not deter him from
his purpose, they will at least, for the most part, render
him incapable of carrying it successfully into effect. The
part of a false witness is more difficult to act than is
generally supposed; and though many rashly and wickedly
engage in it from a false confidence in their ability, yet
very few can sustain it to the end, and through the great
ordeals of cross-examination and publicity.
All this is on the supposition that pecuniary interest
will always induce a witness to depart from the truth; but
when from the whole number which compose this class,
we deduct those to whom the interest is too trifling to be
an object compared to their fortune and situation in lifethose who, even under the influence of a strong interest,
would be restrained by the stronger motives of religion
or morality-those who would be deterred by the fear of
shame or of punishment-who, without either of these
restraints, find their hearts to fail them from the difficulty
of performing their tasks; when we deduct all these from
the mass of interested witnesses, we shall have very few
left willing to sustain the character of perjured ones; and
of those few, not many who can do it with any prospect
of success. But under the general words of the rule, all
these are excluded-all kinds of pecuniary interest disqualifies. He who is worth millions of dollars, cannot be
a witness if he is to gain or lose a single dollar of those
millions, by the event of a cause; the man of the highest
sense of honour, or the most venerated for his holy life,
is equally excluded, if the eventual gain or loss is equiva



428           INTRODUCTORY REPORT TO
lent only to the hundredth part of those sums which he
daily distributes in charity; and even in cases where
detection is highly probable, the most timid is, by the
rule, supposed ready to encounter the risk of punishmentand the most honourable, to take his chance of infamy,
for the uncertain hope of an insignificant gain. Detection
is presumed to be impossible, and the credulity of judges
and jurors to be so great, that a false tale must, if it be
allowed to reach their ears, produce instant conviction
that it is true. They forget, who insist on this rule, how
difficult it is even for truth to produce its proper effect,
although attended with all the advantages it naturally
brings with it; and they argue as if falsehood alone could
charm the understanding and lay suspicion asleep.
The question then is this, whether on account of the
danger of being deceived by the few who are willing to
assume the character of perjured witnesses, a danger
diminished by the many powerful means we have of
detecting their falsehood, it would be wise to deprive
ourselves of the testimony of all those infinitely more
numerous classes of interested witnesses, from whom we
may expect nothing but truth? For this is the only
alternative. The law can draw no line between interests
of different amounts, or between interested witnesses of
different characters-it must admit or exclude the whole.
Which shall it do? One consideration, if there were no
other, would seem to resolve the question. Exclusion is,
in many cases, a certain evil-admission only a problematical one.  Where the incompetent witness, whether
from interest or any other cause, is the only witness,
certain injustice results from a refusal to hear him.
Listen to him, and, first, it is not certain that his interest
or any other cause will induce him to depart from the
truth; and, secondly, if he do, it is not certain that you
will believe him. If he is not the only witness, the other
testimony will furnish additional means of detecting any
false statement that may have been prompted by his
interest.
I have said, that the law cannot distinguish particular




THE CODE OF EVIDENCE.           429
cases, but must enact a general rule.  This is obvious;
and it is equally so, that the judges of the fact can.  Let
them hear the witness. From all the circumstances which
they can collect, and which the legislator cannot, they can
tell, with tolerable certainty, in which class of interested
witnesses he comes-those who may be believed, or those
who may not. This they cannot do without hearing him;
and when they have done so, and have even assigned him
to the latter class, they do more than destroy the ill effect
of his testimony, because they draw from it all the information which, as we have seen, may be derived even from
false evidence, and run no risk of crediting that which
they discover to be inconsistent with truth. They can do,
then, effectually, that which the legislative rule does
imperfectly-they can let in the interested testimony which
is worthy of credit, and exclude that which is not. Why
does this rule exclude all interested testimony? Because
a part only is unworthy of credit. Would wise legislators
be guilty of this absurdity, and worse than absurdity, in
many cases this injustice and cruelty, if it were possible
for them to make the necessary distinction? Certainly
they would not. Why not then commit this task to those
who can? Why not say to those to whom they delegate
the decision of facts, "Pecuniary interest has, in some
cases, a seductive influence, injurious to the discovery of
truth; in many others, it will not be felt. We can draw
no line of demarcation between the cases. We cannot
make the exclusion depend on the magnitude of the
interest, because that is relative. Fix the minimum where
we may, there are men on whom the smallest sum would
have an improper influence; and others on whom the
largest would have none. Wherever we draw the line,
we shall admit suspicious evidence and exclude that which
is unexceptionable. To be just, a separate rule must be
made for every witness, because upon no two will the same
amount of interest have the same effect.  It is your
privilege to determine what degree of credit the witness,
under all the circumstances, favourable or unfavourable, in
which he is presented to you, is entitled to, because it is your




430            INTRODUCTORY REPORT TO
duty to determine according to your conviction of the
truth. In prescribing the duty, we will not restrain you
from using the means necessary to perform it. You who
see the looks and observe the demeanour of the witness,
as well as hear what he says; you who can inquire into his
circumstances and character; you who can judge how far
his testimony is corroborated or contradicted by other
evidence; you will be better qualified to determine whether
the interest be so great as to render him unworthy of
belief, than we are, who have none of these means of forming a correct judgment." This would be the language of
reason. Instead of it, what is, in effect, that which is
addressed to them? "It is true that you are delegated
to decide litigated questions of fact. The greatest confidence must necessarily be reposed as well in your integrity
as your judgment, in the general performance of this
duty; but there is one point on which we dare not trust
your discernment. We will not permit you to hear what
an interested witness will say. We are sure, that under
all circumstances that may counteract the bias of his
interest, and however small that interest may be, we are
sure that it will induce him to utter a falsehood; and
we are sure that, in spite of all the means we give
you to detect it, we are sure, that however improbable
it may be, you will believe it.  Therefore, whenever a
witness is presented to you, ask him first, whether he will
gain or lose a cent by the decision of the cause; if he
answer truly, that he will-be sure that he will answer
falsely on every other point on which you may examine
him. It is useless to inquire, what proportion the interest
bears to his income; it is useless to ask, what is his character
for veracity or religion. The highest standing in society, the
best reputation, the largest fortune, are nothing compared
to this all-prevailing interest of a dollar, or a cent. Do
not give yourselves the trouble to inquire, whether the
circumstances do not show a case in which falsehood would
meet with certain detection. The fear of punishment-the
fear of shame-the restraints of religion-all give way before this irresistible interest of a dollar, or a cent. No mat



THE CODE OF EVIDENCE.           431
ter if the fortune, the reputation, or the life of a citizen depend on the question; it is better they should all be lost, than
that you should listen to an interested witness. You may
hear the sworn enemy of the party. You mayhear his brother
or his most intimate friend. We can trust you with the
difficult task of determining what effect all the passions of
the mind can have in giving a colour of truth or falsehood
to testimony. But interest, all-powerful interest, has no
shades of difference-a cent will influence the richest
banker in the same degree that a dollar will a beggar.
Wherever this appears, you must exclude it-without pity
for the ruin it occasions-without remorse for the death
it inflicts!" This is the true meaning of the short precept
of the English law, and the equivalent provision of our civil
code. There is not a word of exaggeration in the comment
I have given; and after considering the subject in all its
bearings, who can hesitate on the question, whether interest ought not rather to be considered an objection to
the credit than to the competency of a witness? In the
first case, you can appreciate the bias at nearly its true
value, according to the circumstances on which it has to
operate; in the last, the strongest and the weakest motives
are considered as having equal force.
The truth of this reasoning is evident from the efforts
which, of late years, the courts have been making to get
rid of the shackles with which they have been bound by
their own decisions; unable or unwilling to declare the
rule unwise and unjust, they have relaxed it in some cases,
but retained it in others, which, for the same reason,
ought to have formed an exception, and by hearing interested witnesses in some cases, and rejecting them in
others, they have not only abandoned the propriety of the
rule, but have established no uniform principle on which
another can be founded. Exceptions, the maxim asserts,
prove the rule. They may prove the existence of a rule,
but never that it is a proper one, unless there is some
reason applying to the case excepted, which does not apply
to the rule. Where the reason for taking a case out of
the operation of a general rule is a good one, and applies




432           INTRODUCTORY REPORT TO
with equal force to all that are left within it, there can be
no better proof that the rule itself is bad. Let us examine the exceptions in this view; premising, however,
that in civil cases there can, in our state, legally be no
exception. The legislative will is clearly and imperatively
expressed: those who are interested-no matter in what
degree, no matter whom the witnesses may be-are all
excluded. No enlarging on restrictory construction can
here apply. It cannot, under any pretence, be said that
the spirit of the law does not apply to any of the cases
excepted; while it is acknowledged that they are all embraced by its words: for the spirit of the law, as well as
its words, excludes all interests. Yet our courts in civil
cases, without any legislative authority, admit all the exceptions contained in the English law. They admit them
legally, in all criminal cases, under the act of 1805; and
they admit them again, without authority, in the other
offences created by legislative statutes. Allowing the
exceptions thus generally, with and without express
authority, the propriety, or a supposed necessity, must
have strongly pressed upon them; and therefore, the
opinion of the courts has been clearly expressed against
the rule, and in favour of the exception.
The first of those exceptions is the case of a factor in
trade, or any other agent, who makes a sale or a contract
for another, on the amount of which he is to receive a
commission. If the sale itself, or the amount of the sale,
be disputed, and a suit be brought to recover the amount,
the factor or agent is a good witness. Yet he is evidently
and largely interested: if the sale be established, he receives five per cent. or one-twentieth part of all that is
recovered; if the sale be disaffirmed, he receives nothing.
Indeed, the interest in those cases has never been disputed,
but he is admitted on the ground of an alleged necessity.
It is proper to examine here in what sense this word is
used. It is employed by, I believe, all the judges who
have sanctioned the doctrine, and can mean nothing more
than that if the witness were not heard, there would be a
risk that some part of the truth would not appear; for it




TIHE CODE OF EVIDENCE.           433
must be observed, that no inquiry is made previous to the
examination of the factor, whether the sale could not be
established by other evidence.  There may have been
twenty witnesses present when it was made, yet the factor
is examined: not surely for want of other testimony.
WVhy then? The only answer that can be given must be,
because he is considered as a good witness; because,
although largely interested, the probability was in favour
of his adherence to the truth; or that, if he swerved from
it, his falsehood would be detected. The necessity in this
case, then, differs in nothing from that which takes place
in every litigated question, that is the moral necessity of
giving to those who are to determine the truth all the
means necessary to ascertain it; and if it exists in all others
where an interested witness is produced, then the deduction is irresistible, that in all other cases the interested
witness ought to be examined, and that the exception
should take the place of the rule. That the factor is.admitted as a witness, not from the defect of other testimony, is evident from the reason that has been given,
that no previous inquiry is ever made on that subject;
consequently, he is admitted, not because there is no other
proof-but, let us suppose no other evidence to be in existence, he is then, according to the language of the
exception, admitted from necessity: then it follows, that it
is better for the ends of justice to take interested testimony than no testimony. But if it be calculated to mislead, why should it be heard in this case and refused in all
others? But experience has shown, that there is no
danger: the evident utility of the exception, which has
induced learned and prudent judges to go beyond the
bounds prescribed by their constitutional functions in
order to establish it, show, that there is no danger-show,
that it is useful and necessary in this case; and the
reasoning, from the closest analogy, must convince us that
it is.so in all others.
In every case, either the interested witness is the only
one to establish the fact, or he is not. If he be the only
witness, then he may be admitted, according to the reason
2 E




434           INTRODUCTORY REPORT TO
on which the exception is said to be founded, from the
necessity in all cases whatever, as well as in that of the
agent. If he is not the only witness, then, neither in the
case of the rule nor of the exception, will there be any
danger in admitting him; for the other evidence will give
the means of detecting his mis-statements; or the knowledge
of its existence will deter him from making them. Nor
will the alleged necessity exist. Thus, every reason that
can be advanced in favour of admitting the exception, applies with equal force to the abolition of the rule.
The second exception to the rule, and under the same
plea of necessity, is that of a servant, who, in the way of
trade, is eniployed to deliver goods to a purchaser; or a
clerk, who is employed to pay money to a creditor. Such
servant, in a suit against the purchaser, is a good witness
to prove the delivery, and the clerk to prove the receipt of
the money; that is to say, to prove that they did not themselves embezzle the property (a). All the reasoning employed in the preceding case applies with equal, if not
greater, force to this; for here he is prompted to charge the
defendant, not only to save himself from loss, but to preserve
his reputation. Yet, in other cases in which the necessity
would seem equally to exist, the rule is enforced, and the
witness is excluded. A master of a vessel is not a competent witness to prove that there was no deviation in an
action on a policy (b). The driver of a coach is not a good
witness in an action against the owner for injury done by
negligently driving. Yet, in these cases, no one so well
as the captain or the driver could know whether there was
deviation or negligence. It is said, indeed, in defence of
this distinction, " that, although the agent is a competent
witness to prove that he acted according to the direction
of the principal on the ground of the necessity, and
because the principal can never maintain an action against
his agent for acting according to his directions, yet, if the
cause depend upon the question whether the agent has
been guilty of some tortuous act or negligence in the
(a) 2 Espin. 509. 3 Espin. 48.  (b) Starkie Ev. 1730.




THE CODE OF EVIDENCE.             435
course of executing the orders of the principal, and in
respect of which he would be liable even to the principal
if he failed in the action, the agent is not competent
without a release."  I give the words of the most
approved treatise on evidence here to show what stuff the
reasons, on which these distinctions are founded, is made of.
The agent is a good witness for the principal to prove
the payment of money or the delivery of goods which he
himself may have embezzled. Yet he is not a good witness for the owner of the carriage to show there was no
negligence. In both cases, by procuring a verdict for the
owner, he exonerates himself from any action. In both
cases, he is perhaps the only witness of the transaction,
and the best witness in the case of the negligence. One,
too, who lays a wager on the event of the suit, is a good
witness (a).  Why?  Because he does not come within
the rule? Surely not. His interest is apparent. Why
then?  Another exception is made for his case, and
another reason to support it. The party to the suit has a
right to the evidence: and the witness shall not, by his
act, deprive him of it. Now what right has the party in
this case that every other party has not? Has not every
party to every suit a right to the production of the truth?
But the witness, in this case, produces the interest and
apparent disability by his own act! So much stronger the
reason for excluding him.  A man must have a strong
hostile feeling to a prisoner who Jays a wager, not only
that he will be convicted, but that he (the witness) will
convict him (b). Here are interest, animosity, and perhaps the worst passions, all combined; yet he is a good
witness, because, say other authorities, the interest accrued
after the case (c) had arisen in which he is called as a witness. But if bare interest disqualifies, then surely it is of
no consequence how or when the interest accrued. The
argument for the general rule is, that the judge of the
fact will be more probably misled than enlightened by
(a) Skinner's Rep. 586.        (b) 1 Strange, 652.
(c) In the strong case of a witness to a will, a good and disinterested
witness at the time of making the will, who becomes interested afterwards,




436             INTRODUCTORY REPORT TO
hearing an interested witness. If this were true, he ought
not to hear any interested witness, still less one who to his
interest joins a strong persuasion or prejudice on the side
which he is called to support. But it is not true, and this exception proves it! The truth is, that the disqualification
from interest was found to be so inconsistent with principle,
that inroads have constantly been making upon it by exceptions, and I refer to the numerous treatises on evidence, for
others, none of them supported by reasons that would not
justify the total abolition of the rule itself.
Another evil attending it, independent of the injury by
the exclusion of evidence, is the uncertainty it has introduced in the law. Cases, either entirely contradictory to
each other, or supported by the most flimsy distinctions,
give to acute lawyers the means of defeating justice; and
to astute judges that of making the balance turn to the
one side or the other, as their passions or prejudices may
prompt, without, in either case, being liable to the reproach
of acting without authority. Abolish the rule in all cases,
and no such possibility can exist. The evidence will go to
the jury, when they are the judges of the fact; to the
court, when they are not; in both cases, there will be the
check of public opinion, which is either totally lost or
greatly weakened when the testimony is suppressed. The
reasons for believing or discrediting the witness will have
their full weight, because they will be drawn from the
circumstances in each case. The advantages will not be
lost which arise from the involuntary or necessary admissions of truth, which come from an interested witness,
even in the cases in which he is desirous to deceive-from
his manner-from his hesitation-even from  his silence.
The law will be rendered simple on a subject which gives
rise now to numerous discussions, and produces great percannot be a witness to prove the will, and the last intentions of the
testator, although accompanied by all the forms of law, become frustrated!
2 Hayward's Rep. 147. It is not, then, the time at which the interest
accrues justifies the exception. We have seen that the other circumstance, its being the act of the party, would rather add to, than diminish,
the reason for excluding him.




THE CODE OF EVIDENCE.            437
plexity. The judge will no longer have it in his power to
admit or exclude, almost at his discretion, every witness
who is at all interested.
This result, so important in itself, so easy of execution,
and so general in its operation, is now partially obtained,
by a mode which places the interest of the parties frequently in the hands of the witness, by making it optional
with him to give up or retain his interest, or with the
party to exclude him when he is supposed to be unfavourable by refusing to exonerate him from a liability. This
operation for instantaneously transforming a bad into a
good witness, for rendering a statement credible, which, if
uttered before it was performed, would be unworthy of
being even listened to: this operation is called a release;
and, according to the circumstances of the case, it must be
performed either by the witness or by the party. Where
the interest consists in an emolument to be gained by the
witness by the event of the cause, it is plain that his own
act is required to renounce their advantage. If he has a
strong desire that the party should prevail, and his testimony is material, he signs the release, his evidence is
taken, and the cause is gained. If his wishes, contrary
perhaps to an inconsiderable interest, or a secret interest
stronger than the apparent one, should be different, he
refuses the release, and the party, whom he might have
saved, loses his fortune, his reputation, or his life. The
witness, then, is the arbiter of his fate; not by perjury, or
other illegal means, but by the exercise of a legal right,
for which he can incur neither punishment nor reproach.
Again, the interest may arise from a liabilty to some
demand which may be the consequence of a certain decision of the cause. In this case it is evident that the
release must come from the party to whom the witness
must pay or account. If he give the release, the witness
is heard; if he refuse, the testimony is rejected. Here
again he becomes the arbiter. But the whole of this is
downright mummery, unworthy of a place in the jurisprudence of an intelligent people. So far from adding
any thing to the credit of the witness, a release ought nine




438           INTRODUCTORY REPORT TO
times in ten to detract from it; because it must always
arise from a stipulation expressed or understood, that the
witness will state to the jury what he has before stated to
the party; and all these contrivances to escape from the
operation of the exclusionary rule, must demonstrate that
it is unwise and unjust.
Analogous to the extraction of truth from interested
witnesses, is that of learning it from the statements of the
parties themselves. To a certain extent this is permitted by
our present law. In the code now offered it is extended,
and alterations are proposed in the manner of obtaining it.
If, on the one hand, the parties are those most strongly
tempted to alter or conceal the truth; on the other, they
are those whose knowledge of the case best enables them
to declare it. These conflicting considerations have, in
the jurisprudence of most nations, produced the effects that
might have been expected from the same source which
excluded the testimony of interested witnesses. A general
rule, with exceptions founded on reasons more or less
applicable to the rule itself, produced a continual struggle
between a conviction that the rule was unjust and the
want of courage to avow it, and to break through the
trammels it imposed. In England a party may, by an
expensive proceeding, in another court, obtain answers, on
oath, to such questions as he may propose to the adverse
party.  In France the same power is given to the party,
without the necessity of resorting to another court; and it
is there extended to the judge by what is called the
decisory oath, when the evidence is, by an artificial scale
they have established for graduating it, equally balanced.
Here it is given to the party only, but in the same court.
In all these cases there are defects, both of form and substance. Of form, in that they all require the questions to
be propounded in writing, and answered, with, I believe,
the exception of the decisory oath, in the same manner,
without cross-examination, and not in the presence of any
one but the magistrate who attests the deposition. This
is a radical defect. Of substance, in that the right of
interrogation is confined to the opposite party, to the total




THE CODE OF EVIDENCE.                   439
exclusion, in our system and that of England, and the
partial exclusion in the French practice, of the judges of
the fact. We allow the plaintiff and defendant in civil
cases mutually to interrogate each other by the exhibition
of written questions; if these are not categorically
answered, the facts, it is declared, shall be taken to be
confessed. This supposes that a fact must always be stated
in the interrogatory, and the affirmance of that fact is to
be the consequence of an evasive answer, or of silence
with respect to it. This is highly inconvenient to both
parties (a); but what is more so, is that the answer is
final-no explanation can be required of what is equivocal
-no cross interrogatories to test the truth of what is said,
or procure the disclosure of what is omitted: yet the law
permits the respondent to go beyond a mere categorical
affirmation or negative answer; he may state circumstances closely connected with the subject of the interrogatory; and yet on this matter, be it ever so material
or unexpected, the party has no right to question; with
the prior interrogatory and the answer to it, the whole
process stops. In considering this head of evidence, it
appeared to me, chat if it were proper to get that of the
party, it should be got effectually, and when we were
applying to a source of evidence which is manifestly the
most suspicious, that all the means should be applied to
render it full, correct, and faithful, which were used in
other cases. I could see no reason wlfy any of the precautions, necessary in cases where the witness is supposed
to be impartial, should be omitted. If we hear the party
(a) Suppose an action on a promise, and the plaintiff, wishing to
establish, by the oath of the defendant, that when charged with having
made the promise the defendant did not deny it, put this interrogatory,
Did you, on such an occasion, deny that you made the promise? and the
defendant evades the question or refuses to answer it, what is the consequence? The fact, in the interrogatory, is taken to be confessed. But
as far as there is any fact stated, it is that the defendant did deny the
debt. It follows, then, that the refusal to answer, so far from operating
as a confession of what the plaintiff wishes to prove, has a directly contrary effect, for it establishes the fact that he did deny the debt, a fact
which, perhaps, he would not directly have stated on oath.




440           INTRODUCTORY REPORT TO
at all, let us extract from him the whole truth, parts of
which his interest may induce him to conceal; let us, by
cross-examination, detect all the falsities that same interest
may induce him to frame; let us, by the publicity of the
examination in the presence of the parties and the judge,
and of that faithful guardian of private rights, the keen
gaze of the public, deter him from the difficult task of
swerving from the truth.
Permit the party to ponder over a written interrogatory,
which he is to answer in the same mode; let him call in
the assistance of a learned adviser to frame his deposition
in such a way as to avoid the danger of perjury on the one
hand, or avowals injurious to his interest on the other; let
him attest to this in the presence of a magistrate, who is
not to judge the suit, who does not read the deposition, and
who hurries over the formal words which convert the mere
statement into judicial evidence; manage affairs in this
manner, and the result will always be that which it is
found under our practice, that in most cases, the one party
will not dare to probe the conscience of the other; more
especially when, as it were for the express purpose of tempting him to falsehood, he is told, whatever you say shall be
taken for truth, no matter how improbable it is, if two
witnesses cannot be found to contradict, or one witness
corroborated by strong circumstantial evidence, or by
written proof. Surely this is a strange inconsistency in our
law. The testimony of a disinterested and impartial
witness is left to have what credit the judges of the fact
may, from his character or other circumstances, be inclined
to give him; but the oath of the most suspicious witness, the party himself, the one most interested to suppress the truth, is directed by law to be conclusive, unless
contradicted by two witnesses, or one witness with strong
circumstances, or written proof. And it seems scarcely a
fair answer to say, the party who called for his opponent's
oath knew the consequence of his making an unfavourable
answer, and was at liberty either to ask for it or not. The
question is not, whether he knew the consequence or did
not know it; but, whether the condition is just, and such




THE CODE OF EVIDENCE.            441
as ought to be imposed. The party calling for the answer
shows, by that act, his own belief in the fact which he
states, and his confidence that the other party will
acknowledge it. If disappointed in this, what good reason
can be given why he should be precluded from arguing,
that other circumstances in the case, that the improbability
of the testimony, or its inconsistency, should induce the
jury to give it no credit? Why should the jury, who
perhaps do not believe a word the party has declared, be
forced to consider it as truth? The conviction that no
good answer can be given to the queries, has induced the
reporter to propose a repeal of the restriction, leaving the
judge of the fact free in this, as in other instances, to decide
according to.his belief of the fact.
The reasoning which has been given for the admission
of interested witnesses applies, in a great measure, to that
of the parties themselves. But I have stopped short, in
the code which is submitted-and perhaps I have done
wrong in hesitating-I have stopped short of making the
party a witness for himself, except in the case when a
piece of scriptory evidence, unsigned by the party, is produced as presumptive evidence against him. In this case,
the code gives him the privilege of stating the circumstance under which it was written, and his intent in writing
it. With this exception, he may only be examined by the
opposite party, by the judge, or by any one of the jurors;
the examination must be under oath, in open court, and
subject to cross-examination by the opposite party.
The innovation, made by the code, in extending the
right of examining a party to the judges of the fact, as
well as to the opposite party, is founded on this reason:The suitor may decline examining his opposite party from
one of two very different motives; because he has no confidence in his integrity, or because he is conscious of the
want of that quality in himself, and fears that the plain
tale of his adversary may carry conviction with it. The
change proposed puts it in the power of the judge of the
fact, to do that which the party fears to do, in the last
instance, from a bad motive; while, in the cases where the




442           INTRODUCTORY REPORT TO
reasonable suspicions of the one party prevent his having
recourse to the conscience of the other, the extension of
the great correctives of oral interrogation, with its concomitants, cross-examination and publicity, lessen, almost to
zero, the chance of false statements leaving any impression.
Why the party is not allowed to be examined whenever
he himself chooses, is not quite so obviously in conformity
with the principles of the code, which, as has been seen, is
to allow no exclusion of any thing that is calculated to
throw light on the subject; and it has been observed, with
much show of reason, the expositions of the parties are
what the judge principally requires.  It is to this source
of evidence that men, in the common affairs of life, most
resort when they are called on to decide on any particular
fact. They hear the charge, the answer, the reply, the
allegations of both parties, with all their circumstances;
then where there is doubt, they look for other proof, compare the whole, and then decide.  Why will you deprive
the party of the right he ought to have, of being heard,
of clearing up doubts, and rectifying errors, which may
have been produced by the inattention or design of witnesses, or the ambiguity of other evidence? This objection
would have great force but for two circumstances, and
perhaps has some in despite of them. For the first, we
must recur to another provision in the code, which requires
that all petitions and answers, in civil cases, must be
attested on oath. The second is, that, in most cases, it
may be said in all, where the evidence leaves any doubt,
the power given to the judge and to the other party, to
interrogate, will answer the end proposed.
The article requiring all petitions and answers to be exhibited under oath, was introduced after much reflection,
and I ought candidly to state, in opposition to the advice
of some professional friends, for whose opinions I have the
highest respect. They argued against this, as well as
against giving the right of interrogation to the judges of
fact, on the ground, that multiplying oaths made them too'common, thereby lessening their sanctity and force; and
that an affidavit to the truth of a petition would soon




THE CODE OF EVIDENCE.           443
become as proverbially insignificant as a custom-house
oath.
1. To this it was answered, that oaths came to be lightly
considered not so much by the frequency of the occasion
on which they were exacted, as from other causes; that
among these causes was the above, which this very provision was intended to correct; that of allowing any allegations in a judicial proceeding, made by a party, to be considered as a matter of form, which might be false, and yet
attach no blame to the person who swore they were true;
that where pleadings were verbose, technical, and founded
on fictitious forms, the objection would have great weight,
because then the party would generally ill understand the
tenor of the instrument to which he attested-the most
scrupulous party could find it difficult, in the mass of an
English bill in chancery, to distinguish between the
material facts and the formal allegations it contains; and
the ready excuse, " I was told it was a mere matter of
form," is always at hand to satisfy those of an easier
conscience. But in a system which discards all fictions,
where there is no form inconsistent with truth, which
requires facts to be set forth in plain language, as there is
no difficulty in distinguishing the truth, neither is there
any excuse for falsehood; and no more evil need be apprehended, because every suitor is obliged to attest to his
proceedings, than there is from administering an oath
to every witness. Another reason why oaths are treated
with inattention, is not their frequency, but the mode of
administering them, the essential part of the ceremony
being performed by the magistrate or clerk, who, in a
hurried manner, and often unintelligibly, repeats the words
of the attestation, while the deponent is not required to
utter even a word of assent to the obligation on' his conscience, but signifies it by a gesture, in itself of no meaning.
But when, as is provided in the code, solemnity is added
to the form of the oath, the words of which the deponent
is bound to repeat-when he is reminded that he must
submit to cross-examination, and instructed in the consequences of his departure from truth-it may fairly be pre



444           INTRODUCTORY REPORT TO
sumed that the additional number of oaths required by
this provision will not lessen their binding force. This
last mentioned precaution is quite new, and deserves particular consideration. All the attestations, under oath, to
written instruments, as our law now stands, are not only
ex parte evidence, but, in most cases, courts will admit of
no counter proof, much less counter examination; and, in
many causes, amendments to such affidavits have been
refused. The party, or his counsel, prepare the declaration
with great care; so much of the truth, and no more, is set
forth as they think necessary to attain the object, and even
if an idea inconsistent with the truth is conveyed, the
language in which it may be couched, by its equivocation.
secures the party from all fear of prosecution for perjury,
Here the whole matter ends. The proof, thus furnished
by the party, is presented to the judge, who, on this evidence,
grants the order demanded, frequently an order for arrest
of the person, for a seizure of goods, or some other proceeding in a cause, equally important. Here is the testimony of the party himself admitted in its worst and most
dangerous form. No opportunity for cross-examination;
no declaration in full; no appearance of the deponent
before the judge; the affidavit most frequently being made
before another magistrate.  This evil was one of great
magnitude, and to correct it, as well in cases where affidavits
are already admitted as to prevent its recurrence in those
now under discussion, the code provides, that whenever an
affidavit shall be taken in the course of judicial proceedings,
previous notice shall be given, whenever the ends of justice
will not be thereby defeated; but when that may be apprehended, the deponent must be informed that, at a
convenient designated time, he must attend for cross-examination, and that wilful falsehood will incur the same
penalties as if it had been uttered under oath in open court.
These precautions, it is thought, will obviate the fear of
rendering oaths too common, and making parties regardless
of their solemnity. How far it would be proper to abolish
the religious sanction given to a judicial declaration, has
been matter of some doubt. The regard paid to a simple




TIlE CODE OF EVIDENCE.           445
affirmation by a very numerous part of our community,
whose consciences do not permit them to take an oath,
would seem to indicate that it might be done with safety.
But for the reason stated at large in the Introduction
to the Code of Procedure, this sanction is preserved
in all cases, but those in which the declarant has religious
scruples.
2. The other objection urged against requiring the oath
of the party to his petition or defence was, that it would
be considered as evidence by the judges of the fact, and
that an undue influence would thus be given to the powerful, the rich and influential, over the poor and unknown
suitor. I repeat this argument because it was addressed
to me from a highly respectable source, and therefore I am
inclined to think there must be more force in it than, I
confess, I have been able-to discover. This is certain, that
a declaration under oath, of any man, whether witness
or party, will derive some credit from his character and
the absence of motives to falsehood, which his situation in
life suppose; but so will his word when not under oath.
If the plaintiff, who is rich and esteemed, presents his
petition, under oath, in like manner does the poor and
unknown defendant attest his answer. The relative credit
of the parties is preserved. Indeed, of the two modes, the
present affords the greatest advantage to the man of credit;
his simple assertion will, sometimes, have more weight
than the oath of one of bad or unknown character, but
would, certainly, other things being equal, be more readily
believed than the simple declaration of the latter. Requiring the oath of both parties restores, in a great measure,
the equality. But if the objection be good for any thing,
why not apply it to witnesses as well as parties? And for
fear that the oath of the influential man should preponderate
over that of the poor and humble, why not banish the oath
in this case also? As the law now stands, there is nothing,
it is believed, to forbid any individual from swearing to his
pleadings; and thus it is optional with any, who thinks he
can derive an advantage from it, to throw his oath into
the scale.




446           INTRODUCTORY REPORT TO
Having disposed-how satisfactorily the general assembly will determine-of the only two objections made to
the change, let us inquire what are the advantages proposed by its adoption. In order fully to appreciate these
advantages, we must consider the objects which a wise
legislator ought to aim at in providing a mode for the
decision of contested rights. These are, that no one should
be vexed by the commencement of unjust suits; or delayed
or defeated by a false defence in the prosecution of those
which are well founded. The means to attain these important ends are, first, that the language of all law proceedings should be simple and certain, neither involved in
the mystery of technical language, nor disfigured by
ridiculous fictions; that there should be as much celerity
as is consistent with proper deliberation; no more than
inevitable expense; and that every suitor should be responsible for every injurious act wilfully committed. To
effect which last and important purpose, it is essential that,
as far as possible, there should be no intervening party
between him and the judge. Without this responsibility
how can any of the great objects of practical jurisprudence
be obtained? A frivolous suit is commenced, to the great
injury of the defendant. The plaintiff says, truly, "I
never saw the declaration that has been put in." Or, he
may say, "I did see it, but I did not understand a word
it contained. My lawyer signed it, and told me it was in
the necessary and usual form. If it contains falsehoods,
I am not answerable for them." This would be a good
excuse for the client, and the advocate might avoid all
responsibility by alleging, that he had only put in technical
form the instructions of his client. The proposed change
avoids this difficulty.  It secures responsibility, when
the client is obliged to attest what he alleges on oath;
when he is told by the magistrate, who administers it,
"Take care that you tell nothing but the truth, for your
falsehood will incur the punishment of perjury. Take
care you tell all the truth, for what you may endeavour to
conceal will be brought out on a cross-examination before
the judge who is to try the cause, and the public who will




THE CODE OF EVIDENCE.                   447
form  their opinion of you from  the correctness of your
assertions." In the face of these cautions, falsehoods and
vexatious suits will be extremely rare. Responsibility,
under this arrangement, can no longer be shifted off; and
the certainty and simplicity, so desirable in legal language,
will be inevitably attained. We have the honour of being
the first in the union, and that in the incipient state of our
freedom, while we were yet a territory, to reduce legal
procedure to a degree of simplicity unknown, perhaps, in
any other country (a): and if the plain intent of the laws
for that purpose had been adhered to, in practice, this
strong reason for the proposed change would not exist.
But, although those laws directed the parties to state the
facts on which they relied, according to the truth of the
case, with the necessary circumstances of time and place,
yet imperceptibly all the common law counts came to be
introduced; and instead of a plain statement, which every
body can understand, of the manner in which, and the
time when, and the place where, a sum of money became
due from the defendant to the plaintiff, we have a number
of counts, as they are called, contradictory to each other,
but all relating to the same transaction, and unintelligible
except to the initiated. Counts for money had and received,
for money lent, money laid out and expended, as a groundwork, on which is raised the super-structure of an alleged
promise  to pay, never necessary  to  be proved.   The
necessity of swearing to the truth of the demand will, as a
(a) While the practice under the territorial law, which the reporter prepared at the request of the legislative council, was uncorrupted by the introduction of the common law counts, a young gentleman, from one of the
Atlantic states, applied to him to be admitted into his office for the
purpose of becoming acquainted with the routine of practice, previous to
his examination; and inquired, with much apparent solicitude, in how
long a time, with great assiduity, he might hope to make himself master
of its intricacies? The answer was, "It is not easy to calculate to a
minute, but if you call on me to-morrow at two, as I do not dine until four,
I believe the task may be accomplished before we sit down." The surprisa
of one, who had just passed some laborious years in learning the fictions
of the common law, may easily be conceived at this reply, in which there
was little or no exaggeration.




448           INTRODUCTORY REPORT TO
first advantage, bring back the practice to its original
purity, and banish the fictions which the common law
education of most of our lawyers has introduced. The
suitor is required to swear, not merely that the material facts
in his pleadings are true, which he frequently does on the
statement of his advocate, that the parts which he does
not and cannot understand are matters of form only, but
he must swear to the truth of the whole allegation; and,
in order to do this, he must understand what is alleged;
but, to understand it, it must be written in plain and simple
language, according to the fact. Thus several important
points are gained-clearness, simplicity and the absence of
all technical jargon in your proceedings. But this is not
all. To diminish the number of suits has always been,
professedly at least, a great object with lawgivers; but
unfortunately they have imagined only one mode of effecting this; increasing the expenses, vexations and delays of
applications forjustice. Suits will certainly be diminished
in number, if to recover ten pounds, as in England, a disbursement of that or a greater sum is required. But it is
not the interest of any state that suits should be diminished
in that manner.  Its true interest is, that every man
should be deterred from asking what he has no right
to receive; but should recover what is due at the smallest
possible expense, and with the least degree of vexation
and inconvenience; and that no man should be encouraged by the uncertainty of the law, or the hope
of gaining an unfair advantage, from any defect of
form or want of evidence in the prosecution, to withhold
a just debt, or compensation for a wrong. The proposed
alteration, it is thought, will most materially lessen the
number of suits; not by a denial of justice, but by its certain,
easy and cheap administration. This will be effected in
the following manner.
First, all those suits will, it is supposed, be completely
prevented, or so nearly prevented as to be reduced to a most
inconsiderable number, which are brought without any other
hope of success than that which arises from the defendant's supposed want of the necessary proof to discharge




THE CODE OF EVIDENCE.            449
himself-from an apparently just demand; for instance, the
plaintiff having the evidence that a sum of money was
once due to him, but having reason to believe that the
defendant has lost the evidence which had been given of
its discharge, brings his experimental suit, which he gains
if his conjecture of the loss of evidence was well-founded;
and if he finds himself mistaken, he loses nothing but the
costs. Now, suppose this plaintiff obliged, before he can
commence his suit, to make oath to the truth of the
charge, will he risk the searching interrogatories of his
adversary, the danger of the evidence of the discharge
being produced, the punishment, the infamy, that will await
his detection? Certainly not. This whole class of cases,
then, may be considered as struck off from the docket.
Next to those are the less numerous cases in which
suits are brought merely for purposes of vexation. As
greater risk, nay, a certainty of failure, must attend these,
and the same consequences follow the support of them by
a false oath, we may as reasonably suppose that these also
will be swept away.
In the cases considered, the party is supposed to be
conscious of his want of merits. A most numerous class
is composed of those in which, from irritated feelings or
false information, he really believes himself injured and
entitled to relief. Under these impressions he has nothing
to do but to direct the suit. The man who stands between
him and the judge, for the most part, does not examine
very closely into the proof by which the suit is to be supported: it is not his interest to do so. He commences
the suit; and to commence it he has no need in other
states, in any case, and since the introduction of the
common law counts, he has no need in many cases here,
of any precise information as to the cause of action. He
files his petition, stuffed with a variety of counts or statements, some one of which he hopes the evidence will fit;
and when, in due time, the cause is ready for trial, he
begins to call for the testimony, and finding that it will
not support the cause, it is either dismissed, continued with
the vague hope that some evidence may in time be dis2 F




450           INTRODUCTORY REPORT TO
covered, or it is brought on with no prospect of success
but that which the uncertainty of the law will afford.
Instead of this careless, precipitate mode of proceeding,
impose the necessity of such a precise statement as must
be attested on oath and supported by the examination of
the party making it under the interrogatory of his adversary, and the causes of this description also will be
greatly diminished in number.
There are other causes which may be readily supposed
will, under the proposed regulation, restrain plaintiffs from
bringing experimental, vexatious and hasty suits. The
same causes will operate on defendants to make compromises and settlements before suit brought, or prevent a
frivolous or vexatious defence afterwards.  It will no
longer be sufficient for an attorney to say for a party, that
he owes nothing, or to put in any other plea or allegation
that he knows to be false, in order to retard or avoid the
payment of a just debt; or the performance of any other
legal obligation. The previous oath, the all-searching subsequent interrogation under the inspection and in the
hearing of the public, will effectually prevent any false
pretence being made. The creditor, not being irritated by
the delay, the vexation and the expense of a groundless
defence, will be more lenient; and the debtor, knowing
that he cannot rely on these shifts, will be more punctual;
and thus the same measures which facilitate the recovery
of a legal demand, will prevent those from being made
which are unfounded or vexatiouis.
Having demonstrated, as it is hoped, the utility of requiring that all the judicial allegations of the parties
should be substantiated by their oaths, under the correctives of publicity, cross-examination, and the right of
interrogation given to the judge and the jury; and having
pointed out the analogous reasoning which would require
the admission of the testimonies of the parties in the
cases in which that of interested witnesses is permitted;
it remains only, under this head, to give the reasons why
the code has not permitted the parties to offer themselves
as witnesses in all cases without restriction. It has been




THE CODE OF EVIDENCE.           451
a principle, in preparing this plan, not to be deterred from
proposing any useful change by the mere consideration
that it was new; but, at the same time, to respect existing institutions, so much as to innovate no further than
was necessary; and never where the useful end proposed
could be obtained without shocking established opinions
or prejudices in favour of known forms, although they
might be, in some degree, inconvenient.
In the present instance, the maxim, that no one should
be a witness in his own cause, had been so long established,
as a self-evident proposition, that it was supposed much
more feasible to add to the exceptions, which, as we have
seen, were admitted in practice, than to deny its truth;
while, at the same time, nearly all the advantages that
could be expected from abolishing it entirely, were secured
by the extensions which have been enumerated; to which
may be added, that although the party cannot, except in
the cases and in the manner specially provided for, support
his case by his own testimony, yet the faculty given to the
judge and jury to examine him, will in very nearly all
cases supply the deficiency; because, having his oath in
support of his own statement, as set forth in the pleadings,
if that statement should be denied or explained away by
other testimony, the judge or jury will naturally apply to
the party to know how he accounts for the difference, and
thus he will have the same advantage which a right to offer
his own testimony would give.
The exclusion of interested testimony having been
examined, and found to be injurious to the investigation
of truth, and its admission to be attended with no inconvenience which may not be reduced to one of a quantity
that has no assignable value; it, of course, finds no place
in the proposed code; and with it disappears one of the
most fruitful sources of uncertainty, expense, delay and
inconvenience in the law.
If the search after truth requires that interested witnesses, and even the parties themselves, should be interrogated to discover it, are there any relations, in which
the offered witness may stand to the parties, that




452           INTRODUCTORY REPORT TO
ought to exclude his testimony? By the English law, and
of course, in the several cases which have been noticed, by
ours, there are several: husband and wife-attorney and
client —parties in the same cause.
1. The code now offered does not contain the exclusion
of husband or wife, as witnesses, for or against each other;
because the reporter does not find any one sufficient among
the reasons by which it is supported in the English
decisions or commentaries. The first of these alleged
reasons is, that their "interests are identical" (a). But in
a system which discards interest as an objection to competency, this reason falls of course. The second is said,:by the same authority, to be " on grounds of public policy,"
to prevent distrust and dissension between them, and to
-guard against perjury.  It is said, that individual interest
and individual rights may sometimes, by a wise legislation,
be made to yield to the good of the whole community,
which is understood to be meant by the expression "public
policy;" but those cases are not numerous, and generally
admit of compensation, and ought only to be allowed when
the public advantage is evident and so important as greatly
to overbalance the individual inconvenience which is
incurred to promote it. In the case before us, the public
evils are designated: first, the danger of domestic dissension; secondly, the danger of perjury. The first, if the
evidence should be against the party connected with the
witness; the second, if it should go to exonerate him. The
argument supposes, that if the husband or wife be called as
a witness in a suit to which the other is a party, one of
two things must happen; either unfavourable truths will
be told, which it is said will disturb the family peace; or
perjury will be committed, to preserve it. Now these are
two opposite and contradictory reasons. If the danger be,
that family dissensions will grow out of the testimony, then
that of perjury is avoided: if the danger be perjury, then
that of family discord need not be apprehended. But
legislation must be founded on the general application of
(a) 2 Starkie, 706. 1 BI. 448.




THE CODE OF EVIDENCE.            453
its reasons; not on the tendency of its measures to good -or
evil in particular instances. If the connexion by marriage
be so close as to make the parties incur the danger and
disgrace of giving false testimony for the other, then let the
case be examined solely with a view to the evil of placing the
witness in a situation where strong motives are offered to
him to commit a crime. If the predominant risk be that
of destroying domestic harmony, let that be assigned as
the reason. But to allege both, when they are contradictory, is a strong presumption that neither can safely be
relied upon. Both, however, will be examined, and both
contrasted with the evils which attended the exclusion.
First, let us suppose that domestic dissension is the
danger; that is to say, that one spouse will quarrel with
the other for telling the truth, in a court of justice, when
it makes against the interest of the other. But in most
cases the interest is common between them; therefore,
there is little probability that any ill will can be created
in the mind of the one against the other for not committing
perjury, in order to protect a common interest. The supposition that a domestic broil may ensue from a cause like
this, is to suppose the party raising it corrupt, in expecting
falsehood from  his or her spouse, and malevolent in
resenting his disappointment; and the law cannot reasonably be required to make any great sacrifice for preserving
the harmony of so ill-assorted an union as that which such
a case supposes. The dissension arises from  the performance of a duty- bearing open testimony of the truth;
and avoiding a crime-the commission of perjury: and,
because a brutal, corrupt, or passionate husband may
quarrel with his wife for avoiding the crime, shall the law
declare, that the wife shall not perform the duty? It will
watch over- domestic peace by punishing those who disturb
it, and, for proper causes, by dissolving the bond of an illassorted connexion: but it ought never to say, the one
party shall be exempted from the performance of an
important public duty, because the other is tyrannical and
unjust. The argument supposes, too, that there is greater
danger to domestic happiness from this than from any




454           INTRODUCTORY REPORT TO
other source; but is there any foundation for the belief?
Not one case in a thousand, it is believed, will occur in
practice where any improper excitement will be created by
an adherence to the truth, although it should militate
against the wife or the husband of the party who states it.
Why should it more in this case, than in that of any other
witness? Mutual affection, the knowledge that it was the
performance of a duty required by law, and that it could
only be avoided by a crime, are so many and such cogent
reasons to prevent ill-will on the occasion, that it is
astonishing how this reason could find favour with the
great lawyers who have assigned it as an argument in
favour of their rule; more especially when they thenmselves most explicitly discard this reason by declaring, that
the wife shall not be allowed to appear as a witness against
the husband, even if he consents, or after a divorce; nor
against the interests of his heirs after his death (a). How
connubial happiness can be disturbed by a compliance on
the part of the wife with her husband's request while
united, or by any act after the connexion has been dissolved
by death or divorce, these learned doctors of the law alone
can explain.
Examine the opposite reason-the danger of perjury;
that is to say, the matrimonial union is so strict, that the
one party to it will incur all the dangers of punishment
and infamy rather than tell the truth when it is injurious
to the other; and the law, it is said, holds out this irresistible temptation to the witness when it permits him to
be examined. Yet, by the preceding argument, the
temptation is -easily resisted, the truth will be told, and
this strong connexion is so weak, that it is broken merely
on that account.
But the arguments must be destroyed, not by opposing
the one to the other, but both of them to the truth. There
is no doubt that in this, as in many other cases, minds
may be found that will waver between the declaration of
a truth that may hurt their interests or their feelings, and
(a) 2 Stark. 706. 6 East, 192.




THE CODE OF EVIDENCE.           455
the assertion of a falsehood that, in their opinion, may
secure both from injury; but can the law be said to hold
out a temptation to perjury when it orders a party, under
those circumstances, to tell the truth? If there were no
temptations to conceal the truth, or assert a falsehood,
there would be no need of oaths. Oaths, and the penalties for breaking them, were made for the purpose of
counteracting that disposition. If they were to be dispensed with in cases where that disposition exists, there
would be no need for them in any others. In every such
case, then, it may with equal reason be said, that the law
holds out a temptation to perjury, because it exacts the
oath to tell the truth, when there is an inclination to
conceal it; and the argument would extend with equal
reason to the abolition of oaths, and the penalties for the
breach of them. This exclusion is at variance, too, with
other provisions of the law as they already exist. The
party himself may be interrogated in chancery in England,
and in all cases at law here. The wife may be interrogated to support an accusation made by herself against
her husband for a personal injury, in some cases affecting
his life; yet she is not permitted to prove a fact that
would save him from an ignominious death, on a charge
brought against him by another. Now in all these cases
the danger of perjury is equally great, or greater, unless
we suppose the attachment of a wife to her husband's
interest superior to his own; or her desire to make good
her own charge less intense than that she would feel to
support the accusation brought by another. The danger
of perjury is no greater in this than in other cases in
which it is incurred, without scruple, in the dearest connexions of nature; father and son, mother and child,
brother and sister, friendships of the most intimate kind,
habits of intimacy during a long life-the parties to all
these are every day arrayed for and against each other as
witnesses, and the law interposes no other safeguard to
their consciences, than its penalties, and the danger of
infamy by detection. No rule of exclusion protects the
witness against the influence of his affections or his in



456           INTRODUCTORY REPORT TO
terest. He is heard, and the degree of connexion is
weighed against his character and the probability of his
story; the counsel cross-examine; the public inspect; the
jury interrogate, and calculate, and determine; and no inconvenience is felt in those cases. Why should there be
in this?
Having stated- the general principle, that every party
to a suit has a right to all information in relation to his
cause, of which he ought not to be deprived but for
reasons of great public or private inconvenience; and examined, by discussing the reasons for exclusion in this case,
whether it offers any such inconvenience; let us now
examine the particular evils attached to the rule as it now
stands.
In criminal cases the evil is most apparent. Suppose
the husband accused by positive, but perjured testimony,
of a crime affecting his life, and the wife the only witness
of a fact that would prove his innocence; no matter what
circumstances she could adduce to corroborate her testimony, no matter what intrinsic evidence it contained, no
matter what perfect conviction it would produce of its
truth, it is sternly excluded; and the innocent husband is
executed because "public policy requires that the peace of
families should not be disturbed, and that no temptations
should be held out to perjury.'  In this case, by no means
an improbable one, there is positive evil, cruel injustice,
heart-rending' distress; in' the case  which the law
attempts to guard against, inconvenience only, if it occurs,
but an inconvenience highly improbable to happen, inasmuch as it is supposed to affect domestic union; and as it
is believed to be a temptation to perjury, not one strong
enough to produce the effect, or should it be yielded to,
would be capable of detection by the usual means.  But
even without supposing the extreme case of life or death,
the suppression of testimony is, in all' cases, an evil; and
the law deprives the party of a certain right, to avoid a
problematical inconvenience.
On the other hand, suppose the testimony of the wife
necessary to procure the conviction of'the -husband: she




THE CODE OF EVIDENCE.            457
is the only witness to a murder which he has committed.
This I consider the strongest ground for the exclusion; it
enlists the feelings, and they are most frequently found on
the right side. Shall a wife be forced to give testimony
that will condemn her husband, the father of her children,
to infamy and death, or take refuge in the crime of perjury
to avoid it? I confess that if the alternative could be
avoided, a humane lawgiver would not enjoin it; but
if sympathy for individual distress should not be entirely
rejected, it ought never to be entertained when its indulgence would lead to more extensive injuries to the community. A wise and provident legislator must have the
consequences of every legal provision as present to his
mind, as its immediate operation is to his senses; and in
applying this rule to the subject under consideration, he
should not, in tenderness to the feelings of conjugal affection, permit the husband or wife to escape punishment for
a crime, or defraud another of his right, by declaring that
the only witness of the offence, or the wrong, shall not be
heard. Some crimes cannot be'perpetrated without the
aid of an accomplice. The accomplice may betray the
principal. The fear of this treachery, in'many instances,
may prevent the crime; or a person may not be'found
willing to engage in the enterprise. But,- by the rule of
exclusion, the law furnishes an assistant,'who can never
betray, and one who is always at hand; and thus gives a
facility, to the' commission of offences which no other circumstance could possibly offer. Besides, public justice
requires, and common sense would seem to point out, that
those persons who are the most likely to be acquainted
with the fact' should be first called on to prove it; but who
so probable to know the guilt or innocence of the party
accused as' the companion of all his'hours, the depository
of his most secret thoughts;' and what better calculated to
prevent an intended crime, than:the knowledge that those
from whom it is so difficult to conceal it, may be made the
unwilling witnesses of its disclosure? Precisely in the proportion that a man would be encouraged to commit a crime
by the knowledge'that the person to whom he finds it




458           INTRODUCTORY REPORT TO
necessary to confide it cannot become a witness against
him, will be his fear of committing it, when he knows that
there is no person in whom he may confide that may not
be forced or be willing to betray him.
So sensible of this have been the judicial lawgivers of
England, that they have imposed no bar to the receiving
the testimony of father and son, mother and daughter,
brother and sister, and all the other relations of consanguinity or affinity. They have had no regard to the confidences of friendship, and have thought that the affections
of nature, as well as those of habit and sympathetic feeling,
should afford no obstacle to the attainment of the ends of
public justice. They have gone farther, and made an
exception to the rule which they laid down as one
inviolable, even by consent (a), in the case of husband and
wife; and as we have seen, have allowed the wife to be
produced as a witness against the husband on a prosecution
for an injury done to herself. Now mark the reason!
It is a convenient and a ready one: from the " necessity
of the case;" which must mean, if it mean anything, that
there is a necessity that crimes should be punished, and
that unless the testimony of the wife were admitted, they
would, in those instances, be unpunished. Now, admit
this reasoning, and see whether it does not go to the utter
destruction of the rule to which it is offered as an exception.
There is no greater necessity for punishing a crime
committed by the husband against his wife than there is
for punishing the same crime committed by him against
another; and if the wife is the only witness that can
convict in the last case, her testimony is as necessary as it
is in the first; and being necessary in both, it should not
be admitted in one and excluded in the other. But, in
truth, the inquiry is never made; and in this, as in all
the other cases founded on the convenient argument of
necessity, although there may have been twenty other
witnesses present, the pretended necessary witness is
admitted; and, although there may be none but him
(a) 2 Starkie, 706. Rep, Temp. Hardw. 264.




THE CODE OF EVIDENCE.            459
conversant of the fact, he is rejected where it has not
yet been deemed convenient to admit the argument of
necessity.
2. The advantages of receiving testimony from this
source so greatly overbalance its evils, and the inconveniences and the injustice of rejecting it are so manifest,
that I have not hesitated to give this exclusion no place in
the code. Not so with that arising from the next relation
-that of counsel or attorney and client. In this I have
offered little or no alteration to the existing law, as laid
down by the latest decisions; and this course has been the
result of much reflection, and has been preceded by more
doubts of its correctness, than I have found on any other
provision of the work.  Although  I have earnestly
endeavoured to discard all unfounded prejudices in favour
of established and injurious errors, merely because they
were established, it is yet possible that I may not, in this
instance, have succeeded, and that ideas entertained during
a professional course of more than forty years may have
so fastened themselves upon the mind, as to give them a
force they are not entitled to, and induced me to retain a
provision which ought to be abolished. The legislature
must judge of this; and that they may do so, the arguments, which besides are not devoid of interest, for abolishing and retaining the provision must be stated.
The foundation for the reasoning against the exclusion
is the acknowledged principle, that in judicial proceedings
everything calculated to bring the mind of the judge to a
just conviction of the truth ought to be produced, unless
the evil of its production should be greater than the good
to be expected from it. In this case, say the arguers on
this side of the question, the evil is all on the side of the
exclusion. The object is truth; who so like to know it as
the confidential adviser of the party? If the client have
a just cause, the advocate can disclose nothing to his
prejudice. - If he is in the wrong, there is no reason why
it should not be disclosed. This is the great object of the
law; nor will it be attended with that which the advocates
for exclusion consider as the great evil, the violation of




460            INTRODUCTORY REPORT TO
confidence; for all the communications between client and
counsel will be made with the knowledge that, if called
on, the latter must declare them. The exclusionists, say
their opponents, seem to consider that the great object of
the law, in criminal cases, is the escape of the guilty;
for their objection is founded on the supposition that the
client has confessed his guilt to his legal adviser; and
their rule is framed in order to conceal that confession,
and thus to favour his escape. Whereas, its sole aim is the
punishment of guilt; and the confession of the party being
the strongest evidence, ought not to be suppressed. So far,
they add, from the declarations being dangerous to innocence, it is one of its strongest safeguards. If the client
be really innocent, he will make no confessions; and the
declaration of his counsel that he has made none to his
professional friend cannot but be a presumption in his
favour. Nor is there' anything derogatory to the dignity
of counsel, or that ought to affect the delicacy of his
feelings, to be called on for the confessions of his client.
As a minister of the law, his desire must be that it
should be faithfully executed; and whether conviction
takes place on his declaration of a fact communicated by his
client, or known from any other source, is perfectly immaterial in both cases. He does his duty in declaring the
truth, and he ought to feel equally free from self-reproach
in both. - On the contrary, the profession is degraded by
making the advocate, in effect, the accessory after the fact;
to a criminal, by aiding him to escape the penalty of the
law, with a knowledge that he has incurred it.  Why,
too, it is asked, will you extend this privilege to attorneys
and counsellors, when you deny it in the case of physicians,
friends, or the nearest relations'? In these cases there is
equal confidence reposed, and, in many instances, necessarily-'reposed:;'yet there is no exclusion. Besides, the
contract between counsellor and'client ought to be governed
by the same rules that are applied to other contracts in
relation to the legality of their object. A  contract to
enable one to defeat the known operation of law, would
be reprobated by the courts. But the object of this con



THE CODE OF EVIDENCE.            461
tract, where the party is guilty, is precisely one of that
description, and ought not to have any binding force.
These are the main arguments, greatly abridged and
undoubtedly weakened in the operation, by which it is
contended, that in all cases the counsellor and attorney
ought to be admitted as witnesses against their client.
These reasons are forcible, and some of the arguments, at
first view, unanswerable; but when maturely considered,
they seem to me to rest, for the most part, on the untenable ground that, if the client be innocent, he has nothing
to fear from the disclosures of his counsel; and that if he
be guilty, he ought not to be protected against them. I
have applied the term untenable to this basis of the argument, from a belief that, in many supposable cases, the
most perfect innocence may suffer from the disclosure of
circumstances necessary to be communicated to a professional adviser. In a civil case, concerning the title to land
of which the client is in possession, and which he holds
under an ancestor, whose title, though acquired in good
faith and for a valuable consideration, is defective in form,
the client, ignorant of the forms required by law, thinks
the title is good, but having occasion to make some family
settlement, shows it to his counsel, who immediately perceives the defect.  What is the consequence?  Is the
professional man bound to secrecy or not? Whatever be
the answer to this question, it seems to be decisive, at least
in such a case, of the propriety of the exclusion. If he
be not bound to secrecy, he may, without blame, immediately communicate his discovery to the party interested,
and his innocent and confiding client is ruined. Every
feeling of justice, honour and humanity, would be shocked
at this; and one of the most ingenious opponents of the
exclusion seems to admit, that the uncalled for communication of a fact of this nature would be improper, for he
excludes it expressly from his argument, which he confines
to the propriety of obliging the counsel to answer when
interrogated in court (a). But if the counsel be bound to
(a) Editor of Bentham's Rationale of Jud. Evid., 5th vol., page 815.




462           INTRODUCTORY REPORT TO
secrecy before the trial, why should he be absolved from
the obligation on the trial? To admit the obligation out
of court, is to acknowledge that it arises from some professional duty: and if it be a duty, it ought to be enforced
at all times and in all places, for it would be a strange
provision which imposed secrecy under pain of disgrace,
and perhaps the censure of the court, for communicating
that at one moment which the next is directed to be proclaimed to the world. For if it be a duty to keep the
secrets of a client, it must be a professional duty, and can
only be founded on the injury that would arise to him from
the breach of his confidence. But the greatest of all
injuries would be caused by bearing testimony to the fact
he wished'to conceal. Therefore, to admit that there
exists a professional duty to keep the communications of a
client secret before a trial, is A fortiori admitting that the
same duty requires them to be kept secret at all times
when the communication of them would injure the client.
It does not appear to be a fair answer to say, that the
client himself might be forced to declare the fact upon
oath, and that, therefore, there can be no impropriety in
drawing the same declaration from the counsel: for, by the
case supposed, and others which might be put, the adverse
party had no notice of the defect, and therefore could not
have made it the foundation of his suit: and the client
himself being ignorant of the want of form in his title,
could not disclose it.
Again, take a criminal case. Money has been stolen,
consisting of coins not very common in  the  place
where the fact occurred. The accused has been seen to
pass some pieces of the same description; other circumstances cause him to be suspected. He has no proof of
the manner in which he acquired the pieces in question.
He is innocent; but he confesses to his counsel, that about
the time of the loss he was in the chamber where the theft
was committed. The other circumstances would not be
sufficient for his conviction; but this, added to them,
would have that effect; and there is no other proof but
his confession to his counsel. Shall he be forced to cause




THE CODE OF EVIDENCE.+          463
the conviction of the innocent man whom it is his duty to
defend? That the testimony of any other, to whom the
prisoner may have made the same confession, would have
the same effect will scarcely be deemed a good answer,
because the case supposes that he has made no such communication; and because it was necessary to state his
whole case to his professional adviser; but no such necessity existing as to any other, it would have been an act of
imprudence to do so, for the consequences of which he
could not blame the law. We must suppose, say those
who argue against the exclusion, that all laws are good,
and, of consequence, that they ought to be executed; and
the truth, by whatever means brought to light, can never
injure the innocent, because no good law can ever direct a
punishment to be inflicted on any but those who are convicted on true testimony. The disclosure of the truth,
therefore, can only injure the guilty, whom it is the object
of the law to punish, but the innocent have nothing to
fear. But the question does not turn on the justice or injustice of the law, but on the sufficiency of the evidence to
show a breach of it. The law, in the criminal case supposed, that forbids theft, is a good law and ought to be
executed; but the effect, upon the minds of a jury, of the
circumstantial evidence, adduced to show the guilt of the
accused, cannot be regulated by law; and the true circumstance of the presence of the party at the place where the
fact was committed, might lead to a false conclusion that he
was the offender, and therefore might, with great propriety, be convicted. So in civil cases, circumstances of
common occurrence may be supposed, which, though true
in themselves, might probably lead to a false conclusion;
and which therefore could not, without injustice to the
client, be disclosed by his advocate. An estate depends
upon the question of the sanity of mind of a testator.
The law annulling testaments made by persons labouring
under insanity is a good law, and ought to be executed:
yet a defendant, holding lands under a testament made by
a person of sound mind, may communicate circumstances,
such as acts or speeches of the testator, out of the com



464           INTRODUCTORY REPORT TO
mon course, which to a jury, ignorant of his habits, might
seem indicative of derangement; and thus endanger the
client's good title. If it be said that in all these and other
cases that might be imagined, the reaction of the circumstances would be accompanied by a denial of the main
fact which they might-render probable, and that as it is a
rule that the whble confession must be taken together, the'danger would be obviated; it is answered, that the rule
cited is a good one, but that there is a general disposition
to believe so much of a confession as makes against the
party, and to disbelieve the rest; and that moreover the
client, in a confidential conversation with his counsel, might
not always so connect the parts of his communication
which were injurious to his interests with those which
supported them, as to render them inseparable, and that if
they are not so connected, the rule will not apply.
All the reasoning hitherto has been under the improbable supposition that, if the law were changed, the client
would go on to make, and the advocate to receive, the
confidential communications in question. But take away
the rule of exclusion and what happens? The client
does know, or does not know, that his counsel is obliged
to discover all he may communicate to him. If he do
not know it, but proceeds to state circumstances that show
his guilt, what is the counsellor to do-stop him short by
a refusal to hear the story? But why should he do this?
If the duty of carrying the law into effect obliges him to
disclose what he hears, the same duty should induce him
to listen to the communication.  Remember also the
principle is, that no dishonour should be attached to any
thing that enforces the execution of the laws, that this is
the first duty of a good citizen, and that it must follow,
as I have said, that the counsellor is as much bound to
listen to the communication as he is to disclose it afterwards. For, I think, it has been sufficiently shown, that,
if it be a legal obligation to state the confession when
interrogated, there is a moral obligation to discover it
before the interrogation; because they both stand on the
same foundation-the duty of causing the laws to be




THE CODE OF EVIDENCE.           465
executed; and, indeed, the voluntary revelation, if it be
a good act, would be more meritorious than the forced discovery under interrogatories: and the consequence is, that
the professional man of high honour, selected by the accused
to defend him, or assigned by the court to that honourable
office, must listen to the story of his confiding client, must
treasure up the circumstances which tend to inculpate
him, and then hasten to the public prosecutor with the
information he has thus obtained. What man of humanity
or honour would accept of such an office? The laws must
be executed-yes! but by such means as are not repugnant
to those sentiments of self-respect which every good
citizen ought to entertain.  To creep into the confidence
of even a guilty man, under pretence of being his
defender, for the purpose of bringing him to justice, is an
act that never can be viewed in a moral or respectable
light. A public enemy must be destroyed, but not by
poisoned weapons, the means, in both cases, are more
injurious than the end is useful.
Take the other, and the more probable, alternative.
The law is known to both client and lawyer, and what
happens? There will be nothing communicated, and the
advocate will have nothing to declare. Public justice,
then, acquires nothing by removing the rule of exclusion.
But is there nothing lost on the score of humanity? Are
no advantages taken from the innocent by this fruitless
attempt to gain one over the guilty? The advocate warns
the client not to utter anything that may injure him on
the trial. The client replies: " In order to enable you to
make my defence, I wish to lay before you the whole
transaction in which this suit, or this accusation, is
fouhded; but I am an ignorant man. I do not know
whether some of the circumstances I may relate cannot,
by the ingenuity of my adversary, be made to bear against
me. It will be best, therefore, for me to keep them to
myself. I must forego the benefit of your advice, because
I cannot, without fear of being entrapped, tell you all you
ought to know." Thus the great benefit which is the boast
of modern criminal law, allowing counsel to the accused,
2G




466           INTRODUCTORY REPORT TO
is in most cases impaired, in many rendered of no avail.
In the work to which I have before referred (a) it is
acknowledged, that, if the exclusive rule were abrogated,
no confessions would be made, and, of course, little or no
information would be obtained. But it is further contended, that the exclusion creates a combination between
client and lawyer, to protect the former, although guilty,
from the penalty of the law; that the advocate becomes,
in effect, the accessory after the fact, by concealing the
guilt which had become known to him, and by aiding
the culprit to escape; and thus an act which would be
culpable in one, is made the subject of boast in another.
There is some force in these observations, so far as they
apply to the devices by which solicitors degrade themselves
and their honourable profession for the purpose of suppressing or perverting testimony, in order to procure the acquittal
of their client, whom they know to be guilty. Whether any
remedy can be found for this inconvenience, consistently
with the preservation of the rule of exclusion, may, perhaps, be doubtful; but although the secrecy it requires may
sometimes be abused in this manner, yet it is not the
necessary consequence of it. An honourable and conscientious advocate may contend for the acquittal of a client
whom he may yet, from circumstances disclosed to him in
his instructions, believe to be guilty. He may, under the
operation of the present rules of evidence, do this from
two considerations; first, because he cannot properly make
himself the judge of the man whose case he has undertaken to defend, not to decide upon. Secondly, because,
while the rule of exclusion lasts, the confession of the
accused to his counsel is no evidence, and it is the professional duty of the advocate to see that the accused is
condemned by legal evidence only. This supposes no
other combination between client and counsel than one
which goes to support, not to defeat, the law. If the
evidence, independent of the confession to counsel, be
defective, and the confession be no evidence, surely there
(a) Editor of Bentham's Bat. Jud. Proof.




THIE CODE OF EVIDENCE.            467
is no immorality in urging an acquittal. On the contrary,
the immorality and illegality would be in procuring a conviction which was not justified by legal evidence. The
repeal of the rule of exclusion, then, is not required from
this consideration; and not believing that any positive
good would result from its abrogation, it has been retained
in the code-but confined strictly to cases of communication for professional aid, either in the conduct of, or preparation for, a suit or defence, or for advice in some lawful
occasion.
3. The next exclusion of testimony applies to religious
confessions, made to a priest of the Catholic religion. The
reasons for this are obvious. To force the disclosure, if
it could be done, would be a tyrannical invasion of the
rights of conscience; and the law would be useless if it
could be executed; because, in that case, as in the case of
counsel and client which has just been examined, no confession would be made, and there would be nothing to
disclose. But, independent of the protection of the
religious duties and opinions of a numerous class of our
fellow citizens, much positive good has resulted from the
institution of this religious rite: confession is calculated
to produce repentance and reformation; crimes have been
prevented, restitution made, and unjust litigation averted,
by its means; and moreover, the penance imposed by
the priest, furnishes the means of inflicting some penalty
for offences that, being unknown, would otherwise be unpunished. This rule of exclusion is not acknowledged by
the English law (a), although it has been enforced by a
decision in the state of New York (b). In confining
this protection to the priests and penitents of a
particular sect, I was guided by the belief that, in no
other sect, was auricular confession made obligatory
as a religious duty, and consecrated as one of the solemn
rites called sacraments, as it is by that description of
Christians. Professors of other religions, and of other
(a) 2 Starkie, 396. M'Nally, 258. Peake, 77. 2 Atkins, 524.
(b) Smith's case. Philip's case.




468              INTRODUCTORY REPORT TO
sects of the same religion, may seek to disburthen their
consciences by confession to a minister or priest, but
as secrecy in those cases is not a religious duty in the
clergyman, his conscience would not be violated by exacting a disclosure; and as the confession is not obligatory
on the penitent, it must be considered as a voluntary
communication; and it would be difficult to draw a distinction between this and any confidential confession to
another individual. Whenever a religious sect shall arise,
among whose tenets confession is held to be a religious
duty, and concealment of the matter in confession an
obligation of the most sacred kind, then the same protection ought to be extended to the professors and priests of
such sect.
4. Other descriptions of persons, excluded from testifying by the English law, and of course by ours, are those
who are deemed infamous.  We have seen the numerous
classes which this vague description embraces in the
Spanish law, which, it is necessary to repeat, is also ours
in civil cases, and in those of other criminal causes than
those designated in the law  of 1805.  Nor is the legal
import of the term well defined by the English decisions (a); so that, if it were proper to exclude the testimony of the infamous, a law would be necessary to
designate what persons ought to come under that description. But it is thought that this will be rendered unnecessary, when the propriety of continuing the exclusion
comes to be considered.
Let us recur to the position made in the argument
against one of the former rules of exclusion, that no man
will, without some motive, make a false statement in preference to one that is true; and having seen that, even
(a) Where a man is convicted of an offence, which is inconsistent with
the principles of honesty and humanity, the law considers his oath to be
of no weight, and excludes his testimony, &c. 2 Starkie, 713. This is
the text on which commentaries have been made by numerous decisions,
none of them denying any future judge the right of declaring any other
offence to be contrary to the principles of honesty and humanity, and of
course rendering those guilty of it incompetent witnesses.




THE CODE OF EVIDENCE.           469
when that motive exists in the shape of interest, there
were so many antagonistic motives always at work as to
render it more probable that truth would be extracted
from an interested witness, than that he should either
endeavour to deceive or succeed if he did attempt it.
Having come to this conclusion in cases when the motive
for falsity exists, why should we hesitate in a case when
no such motive appears?  One who has been guilty of
falsehood, perjury if you will, ninety-nine times, will tell
the truth the hundredth, if he expects no advantage from
concealing it or telling a falsehood. Remember that we
are now speaking of infamy alone as a ground of exclusion, not infamy coupled with interest in the shape of a
bribe, or any other motive directly operating on the
witness. To justify the exclusion in such a case, we must
suppose that because a witness has, for some advantage
received or expected, told a falsehood once, he, without any
advantage, to himself without any motive, for ever after
will persevere in telling falsehoods rather than truths.
Nay, more, we must suppose that after having been detected
and punished for the falsehoods which he was induced by
the hope of gain to utter, for it is the conviction only
which creates the incompetency, he will, without the hope
of gain, incur the same risk merely for the love of falsehood. This is so improbable, that some inducement must
be added, to render the perjury probable, and justify,
on that ground, the exclusion. What shall that be?
An interest in the event? But we have seen that
this alone is not sufficient cause: nor is the con.
viction for an infamous crime alone a sufficient cause.
If the union of the two produces that effect, then the rule
should be, not that an infamous, but that an infamous and
interested witness ought not to be heard. But the rule,
even thus modified and restricted, would be a bad one, on
account of the effect it would have on the right of third
persons, and on the security of the person and property of
the party who had been convicted. The most approvedauthorities, from which the rule is derived, add, as the
reason on which it is founded, "that the law considers the




470              INTRODUCTORY REPORT TO
testimony of one so convicted as of too doubtful and
suspicious a nature to be admitted in a court of justice
to affect the property or liberty of others" (a).  This supposes the testimony of the witness always to be intended
to take away the property or liberty of another. But
how if its being heard be the only means of preserving
property, or liberty, or life itself?  How  then?  Is it of
too suspicious a nature to effect these good ends?  It
would rather seem that the reason may, in many cases, be
traced to the inconsiderate legislation of early ages,
which made the disability to testify a part of the penalty
for the offence, intended to affect the offender alone, without considering the extensive operation it might have on
the interests of others; for we find the same clause
introduced into modern statutes, adding, after other penalties, "and shall be incapable of testifying in any court
of justice." But whatever be its origin, there is no good
argument for its continuance. If there are some occasions
on which we may choose our own witnesses, there are
many others, and quite as important, on which this is
regulated by chance. If the only and casual witness of
a transaction, on which fortune may depend, happens to
have been convicted in this, or even in a foreign (b),
country of an infamous crime-no matter what time has
elapsed, or what the character of the witness may be —he is
incompetent. No matter whether his testimony is corroborated by circumstances so as to render it evidently
true, or whether it is enforced by being clearly contrary to
his interest, nothing can render it fit to be heard; truth
(a) Starkie, 714, cites Gilb. L. E. 256. 2 Bulst. 154, Br. b. 4, c. 19.
Ib. b. 4, c. 8. Blackstone gives one of those fanciful reasons, too frequently found in his excellent work, in support of the common law rules,
that "because the person convicted of an infamous crime could not have
served as a juror, he should not be permitted to give evidence to a jury,
with whom he was too scandalous to associate."
(b) This point has been differently decided in Massachusetts and in
Maryland. In the state first named, the foreign conviction did not disqualify; in the last, it operates as an exclusion. 17 Mass. 515. 2 Har. &
M'H. 120. Ib. 373. 1 Har. & J. 572.




THE CODE OF EVIDENCE.           -471
itself-evident, uncontradicted, and incontrovertible truth
-must not be received from lips that have once been
polluted by falsehood, if that falsehood have received the
condemnation of law; for, unless sentence have been
passed, an hundred falsehoods, proclaimed in the marketplace every day of the witness's life, will not disqualify
him. But, even in the cases where the witness is selected,
there is no security; his previous conviction may be
unknown, or a subsequent judgment may incapacitate:
and cases are not wanting where testaments, regularly
executed in the presence of the requisite number of
witnesses, have been set aside (a), and the will of the
testator disregarded, because one of those witnesses had,
either previously or subsequently, been convicted of a
crime, the chief punishment for which has thus fallen on
the innocent. Even life itself may fall a sacrifice, the life
of the innocent, by an ignominious death, to an adherence
to this rule, and that by no violent supposition of circumstances. A homicide has been committed which, according to appearances, would be murder, but which facts,
known only to the convicted witness, prove to have been
a justifiable act; but that witness cannot be heard. Thus
fortune, liberty, life itself, are sacrificed to the maintenance
of a rule which is absurdly invoked as their support.
5. Thus far the exclusion of the witness has been considered only as it may affect others. But consider the
more probable operation it may have on the witness, and
through him on the public peace. In the long list of
offences against person or property, how many are there
to the conviction for which the testimony of the party
injured is indispensable? All these may be committed
with impunity against a person disqualified by this rule
from giving testimony, and thus a short imprisonment,
which the law may have affixed as a sufficient punishment
for the crime, is changed into an outlawry of the most
rigorous kind, by which the party is put completely out of
the protection of the law, and subjected to depredation on
(a) Mackender v. Mackender, Hill. 28. Geo. II. M'Nally, Ev. 208.




472           INTRODUCTORY REPORT TO
property, to insults, to personal injury, and, if a female, to
the most brutal violence without the hope of redress.
Here again, as in the case of interest, we find by our
present law, exceptions introduced, founded on reasons
which apply with equal force to the rule. By statute, in
England, a conviction for petit larceny shall not disable
the witness; by the court it has been decided, that
the affidavit of a person incapacitated as a witness by conviction for perjury shall be received as evidence, in defence
of a charge brought against him; the judge, Holt, making
this natural reflection-" because he has been convicted of
perjury, must he, therefore, suffer all injuries and have no
way to help himself?" Yet it never occurred to the
learned judge, that this effect which he agreed to give to
the convicted defendant's affidavit, for a purpose which
concerned himself, and where, of course, the two objections of interest and infamy were combined, ought to
be extended to the case where the interest or the life
of a third person were in jeopardy, and where the convicted witness had no interest to disguise the truth.
Still less did it occur to him that the very words of his
decision would permit the convicted person to make a
complaint for an injury done to himself, or to support
the prosecution by his oath, the only testimony, perhaps,
in existence; for it is only in the case of an affidavit to be
used on an incidental question, that the exception is made:
a case which, of all others, ought not to have been made
an exception; that of affidavit, made with deliberation,
in secret, and attended by no opportunity for crossexamination. Therefore, we have the strongest case in
favour of the rule made an exception to it; and the rule
itself applied to those only where there is the least danger
from the admission of the testimony.
Another, and no less incongruous, exception is, that
made in favour of the accomplice, who is every day
admitted to testify against the principal. Here we have
interest of the highest kind-the hope, often the assurance, of pardon-joined to the acknowledged infamy of a
participation in the crime; and yet the witness is heard.




THE CODE OF EVIDENCE.            473
For what reason, if the general rule of exclusion be a
good one, should the exception be made? Necessity?
What necessity? The necessity of convicting the accused
by false testimony; for it is on the supposition that it will
be false that you exclude it in other cases. If the
evidence be too suspicious to be heard to preserve fortune,
liberty, or life, can it be pretended that there is a necessity
for using it for depriving one of these blessings?
The uncertainty of the rule has been hinted at, as one
of the reasons for abolishing it. To what offences shall it
apply? Particular circumstances, enumerated in different
books, all agree that felony is one of them. This comprehensive and ill-defined term embraces so many acts,
each employing a different degree of depravity, from
treason down to petit larceny, that it cannot well be conceived that all suppose the want of veracity in those who
are guilty of them, more especially of a general disposition to utter falsehood or conceal the truth, without any
special motive. To preserve the rule, therefore, with any
appearance of consistency, it must be modified: a line
must be drawn between such offences as suppose a particular proneness to falsehood, and those which evince only
other species of depravity. To have taken the losing side
in a political struggle and have incurred the crime of
treason, certainly does not create a presumption of the
disposition to perjury; and perjury without motive, for
the purpose of depriving an innocent stranger of his
fortune or his life, or for the destruction of his reputation.
We must distinguish: and when we come to analyse
the different offences, in order to discover in which of them
lies this latent disposition to mendacity, we shall find it in
none, and we shall come to the conclusion at which I have
arrived-that the exclusion, in this case, also, ought to be
abolished.
6. - One more ground of exclusion remains to be discussed: that arising from religious opinion. The doctrine
on this subject, after having gone through several changes,
is settled, as far as any thing depending on judicial decisions can be settled, into this rule, that a disbelief in a




474           INTRODUCTORY REPORT TO
future state of rewards and punishments is the only cause
of religious exclusion. It is certain that this state of the
mind destroys one of the sanctions for the efficacy of the
oath; but that it is compensated by the additional weight
which may reasonably be supposed to be given to one of
the others, the moral, honorary, or penal sanction, just as
the privation of one sense adds accuracy and sensibility to
the others. The man who is so unfortunate as not to
believe in a future state, will be conscious of the disadvantage attending this disbelief upon his reputation,
and will endeavour, by a more scrupulous attention to his
conduct and conversation, to show that his want of faith
does not derogate from his respectability. But, without
having recourse to this supposition, of an increased force
in the other sanctions from the suppression of one, ought
we to believe that the man who doubts whether he will
be punished in a future state for false testimony given in
this, will, therefore, feel himself bound by no obligation to
tell the truth; or, to state the position more truly, will, on
that account, be more inclined to falsehood than to truth?
May he not dread the reproaches of his conscience in this
life? May not a moral sense show him the utility and
beauty of truth? May not a sense of honour make him
disdain the idea of falsehood? May not the fear of
infamy or of punishment deter him? No, say the inexorable exclusionists; we must have every security for the truth
of the testimony, or we dare not trust ourselves with hearing
it; or rather, we must have this, and we will dispense with
all the other. A man of profligate character, who laughs at
all moral duties; a dishonoured and notorious liar, who has
no regard for reputation; a witness who resides out of the
reach of the tribunals which might bring him to punishment
for his perjury, and therefore has no fears for the consequences; all these may be heard; but the man of honour,
of integrity, and the most fearful of the temporal consequences of an aberration from truth, cannot be heard if
he cannot believe in the immortality of the soul-a most
unfortunate state of mind, but certainly not one that
supposes a want of veracity. Belief in a future state must




THE CODE OF EVIDENCE.           475
arise either from reasoning on probabilities, or from a conviction of the truth of revealed religion. Some minds
may be so framed as not to yield to the evidence which
most of us think sufficient on these points; but surely an
inability to draw a just conclusion from abstract propositions, does not imply such a degradation of moral principle
as would render it more probable that, without motive,
he would prefer falsehood to truth. The religious sanction
is the only one which, by this reasoning, will secure the
truth. But yet, you will believe a quaker, who rejects
even the form of the oath; yet you will in a thousand
instances, as in custom-house declarations, put no faith in the
oath, which is unaccompanied by the other sanctions, and
because little dishonour is attached to their breach, and
punishment rarely follows their violation. If the truth
could be demonstrated, it would appear that the fear of
the consequences in a future state is not half so operative,
taken by itself, as the fear of dishonour and punishment
here.  Therefore, in itself, this disbelief does not destroy
the credibility of the witness. On the contrary, from the
mode in which alone it can be proved, it must add to his
credit. To avow this disbelief requires some courage. The
atheist is a character not favoured in society. A repugnance to utter a falsehood, for the most part, would
be the motive for making the avowal; yet, the moment
he has given this evidence of his regard to truth, he is
declared unworthy of belief.  If, being an unbeliever,
he answers falsely that he believes, he is a good witness.
If he answers truly on this point, the presumption is, that
he will answer untruly to every other question that may
be put to him; for, remember, that whatever proof you
may have to convict him of disbelief, it must all end in
that to be derived from  his own examination.  What
he may have said or written yesterday is no proof of his
belief to-day. It is the actual state of mind at the time
of examination that must be inquired into, and if he believes then, he is a good witness; and this state of mind
can only be known from himself.
In itself, then, the exclusion is absurd. In its con



476           INTRODUCTORY REPORT TO
sequences it is more dangerous than any we have reviewed.
Not only is the unbeliever, in common with the witness
convicted of crime, put out of the protection of the law, as
to all injuries to his person or property that require his own
evidence to punish or repress; not only in this case, as in that,
is the party entitled to his evidence deprived of it, when it
may be necessary for the protection of his property or his
life; but in this case every kind of outrage may be committed, not only upon the person who wants the necessary
faith, but in the presence of others of the same description.
There is no more risk than if it were committed before so
many statues. All those who, knowing the offender's guilt,
might wish to avoid giving testimony against him, but are
unwilling to expose themselves to the punishment of perjurers by false testimony, have the ready means of avoiding
the examination-an avowal of unbelief is all that is
necessary. If it be false, there can be no detection or
punishment, for as it is a matter of belief only, no one can
contradict this assertion.
There is another view in which the inquiry into religious
belief, which must precede the exclusion, appears highly
reprehensible. All kinds of religion are, by our laws and
constitution, put on a perfect equality. He who believes,
he who doubts, and he who disbelieves, have the same
civil rights. Every speculation, as to the existence or
non-existence of a future state, of the probability or
duration of rewards or punishments we may expect there,
all the infinite modifications from mere conjecture to perfect faith, are all so many species of religious tenets. No
one sect has a right to say to another, mine is the true
doctrine, and therefore I am entitled to temporal advantages of which you ought to be deprived. But the right
of appearing as a witness against one who has committed
a crime affecting the party, is a civil and temporal right;
to deprive him of it, for a want of uniformity of faith in
any one point with the rest of the community, is to deprive
him of it for a difference in religious belief, which is contrary to the constitution and laws.
For these reasons, all exclusions of particular persons,




THE CODE OF EVIDENCE.            477
as witnesses, are abolished by the code, except in the
instance of persons insane, and the analogous one of
infants whose minds are not sufficiently developed to give
information on the subject inquired of. But in these cases
modifications of the present law are introduced, which
require the attention of the general assembly.
As the law now stands, the court decides on the fact
which is to cause the exclusion of the witness; and,
although the jury may be quite convinced of the sanity, or
maturity of judgment of the witness, he cannot be heard,
if the court believes him either to have lost, or not yet to
have acquired, the intellectual powers necessary to distinguish and relate the truth. By this code the determination of these questions is vested in those who are to
determine the principal question; they are to examine the
persons said to be insane, and, if they think it necessary,
other witnesses. They are also to examine the infant, and
to determine, not by the usual inquiry, whether he understands the nature of an oath, but, by questions which
may satisfy them, "whether his faculties are sufficiently
developed to receive correct impressions of the fact relative
to which he is interrogated, to relate those impressions
correctly, and to feel the obligation of doing it truly."
These are the only cases of total exclusion. Those who,
under certain circumstances, cannot testify, are slaves, in
cases affecting free persons; counsellors and attorneys, in
the cases before mentioned; priests of the Catholic religion, in cases of religious confession; and parties to the
suit, under the modifications contained in the code, and
hereinbefore fully explained.
The constitution also creates another partial exclusion,
or rather privilege, which a witness has of refusing to give
his testimony, whenever the answer to a question put to
him will make him liable to prosecution for a crime. It
is true, that the words of the constitution only extend
this privilege to criminal prosecutions and to the accused;
but the incongruity of forcing a witness to do that which
the accused was protected against, seemed to call for the
provision contained in the code, which, however, modifies




478            INTRODUCTORY REPORT TO
the rule, as now understood, so as to restrict the objection
to such answers only as would furnish evidence against
the witness on a prosecution for a CRIME.
To appreciate properly the reduction of the exclusionary
rules to this narrow compass, we must not only consider
the advantages it will have in the investigation of truth
on the trial, which, it is hoped, have been sufficiently
demonstrated; but we must also consider the effect it will
have in simplifying the law, rendering a recourse to it less
expensive, giving it certainty and stability, and diminishing the number of suits. That these consequences must
necessarily follow, will be apparent to the most hasty
observer.  Whoever has opened one of the English
treatises on evidence; whoever has looked over the index
to a volume of reports, or into any of the abridgments,
and examined its contents on that subject, will have seen
how large a proportion is occupied with cases in which the
competency of witnesses is discussed; not only for causes
which would disqualify generally, but for those which
make them incompetent to particular points, or in particular suits. Most of the arguments depending on nice, and
often fanciful, distinctions, and the decisions doubted,
or confirmed, or overruled, according to the judgment or
caprices of a succeeding judge, and sometimes, we may
venture to say, according to his respect for, or jealousy of,
his predecessor (a). But when the rule is abolished, all
the exceptions go with it, and the simplicity which we
have claimed for the new system is apparent. Its certainty
and stability are derived from the same source. When
the law is simple and precise, the courts can make no exceptions, as they did when they themselves legislated on
the subject; and from those exceptions arose all the uncertainty and instability of the law of evidence. I need
scarcely add a word to prove another of the characteristics
I have ascribed to -this change in the law; that a recourse to it would be had with less expense; for a few
short articles, and a single page, contain all that must now
(a) See, in the English Reports, the numerous cases before Lords
Kenyon and Mansfield.




THE CODE OF EVIDENCE.            479
be sought (and frequently without any certainty of success)
in many volumes, and numerous decisions: its probable
effect in diminishing the number of suits, has been already,
and it is hoped successfully, discussed.
Having determined the few cases in which persons are
actually or partially excluded from appearing as witnesses,
the code next regulates the manner in which they are to be
examined; and here the entrance into a boundless field of
debatable ground is prevented by a provision, that, with
the exceptions contained in the articles that have already
been examined, and the single additional one in relation to
leading questions, every interrogatory, pertinent to the
issue, may be put, and must be answered. No more
debates as to what is proper evidence in one cause and
what in another. The simple inquiry is, will the answer
to the question elucidate the fact in dispute? No rules
are given on this point, because none can be framed that
would direct the judge through the infinite variety of circumstances in which they must be applied. Whether the
question proposed, therefore, is pertinent to the issue or
not, is of necessity left in every case to the discretion of
the judge.
Leading questions, or those which suggest facts to the
witnesses, are forbidden; but what shall be deemed such
is again, of necessity, left to the decision of the court, but
with a general direction not to prevent suggestions necessary to recall facts to the memory of the witness when the
transaction is remote; when, from its nature, it was not
likely to have made a strong impression on the mind of
the witness; or when, from age, indisposition, timidity, or
other cause, his mind is weakened or disturbed.
The witness is also permitted to refresh his memory by
written notes made by himself, or another by his direction;
and in all cases, when his testimony relates to accounts or
calculations, he is permitted to refer to the papers or books
containing them.
He  is  put under the  protection  of the court
to guard against harsh language, or what is called browbeating; and provision is made for giving him time for




480           INTRODUCTORY REPORT TO
reflection when necessary, and for rectifying errors in his
testimony.
He who alleges a fact judicially, must, if it be litigated,
prove it; but if, in the same manner confessed, no proof
need be adduced.  If neither confessed nor denied
judicially, it must be proved; the oath of the party alleging, in this case, forming presumptive proof.
The rule requiring that the best evidence of the fact
alleged shall, in all cases, be produced, is modified and
restricted to the following cases:
1. When a positive law has declared, that to give
validity to any species of contract, it shall be made in
writing, then no other proof shall be admitted; unless it
be proved, that the writing was made, but has been casually
lost or destroyed, or, without the fault of the party, placed
without his reach.
2. When scriptory evidence of the facts has been made,
and was in the possession of the party; unless it has been
lost or placed out of his reach, in the manner above stated.
3. When positive law has declared certain evidence
necessary for the proof of the facts designated in the law.
4. When the fact which is alleged, if true, must have
appeared by an authentic act.
In all other cases where evidence shall be produced,
which the judge or jury shall deem inferior to other evidence which is not produced, it shall, if legal evidence, be
heard, and the nonproduction of the other shall operate as
presumptive evidence, to have the weight it may deserve,
according to the circumstances of the case, against the
party failing to produce it.
These provisions were deemed necessary to avoid much
useless and perplexed investigation as to the relative
authority of evidence, which frequently causes great
injustice in the exclusion of testimony, and always much
perplexity in the argument.  The first of them  was
drawn with the view to prevent the liberties that are
taken by courts with the legislative will, as expressed in
such laws as are known by the name of the Statute of
Frauds in England, and the analogous provisions in the




THE CODE OF EVIDENCE.           481
civil and other codes of law: sometimes enforcing the
written law according to its terms; at others, creating
exceptions, which weaken, if they do not destroy, its
efficacy. Whether the Civil Code itself ought not to
contain some exceptions to the strictness of this rule, and
whether, while it declares, in general terms, that the
omission of formalities shall vacate the act, it should not
still provide for the cases where it was not in the power
of the party to comply with them, are questions worth
considering when the revision of that code shall again
come before the legislature. In the meantime its will,
clearly expressed, must be obeyed.  It is better that
individuals should suffer from the operation of a law
acknowledged to be bad, than that the remedy should be
applied by unconstitutional means. The one is a partial,
the other a general and fundamental evil.
The second modification of the rule provides for cases
in which the parties have made evidence of their intentions, and reduced the same to writing; in which case
testimonial evidence cannot be produced without proving
the loss of the writing. In this the present law is not
changed.
The two other cases need no explanation.
Another rule of evidence productive of much uncertainty of decision, is that which declares "that parol
evidence shall not be admitted against or beyond what is
contained in a written act, nor of what may have been
said before or at the time of making it." To this, important qualifications are added by the system now proposed.
It is confined in its operation exclusively to writings
containing obligations or donations, and to testamentary
dispositions. These, it is supposed, will comprehend all
the cases in which the parties may be supposed to have
expressed all they intended on the subject matter on
which they wrote. Error, fraud, violence, threats, or any
other circumstance that, by the provisions of the Civil
Code, would avoid or modify a written contract, evidently ought to be proved by extraneous evidence.
Although no party, except in the designated cases, shall
2H




482           INTRODUCTORY REPORT TO
be permitted to qualify, by testimonial evidence, that which
he has deliberately committed to writing, yet, as his will
constituted the obligation of which the writing is only
the evidence, the opposite party may resort to that
higher evidence of will which resides in the mind of the
other, by calling on him to declare, on oath, what was
his true meaning.  Circumstances are pointed out which
are necessary to be considered, whenever, for the purpose
of defeating a contract, an allegation is made of error,
fraud, violence, or threats; but the effect they are to have
is left to the discretion of the judges of the fact.
The sanction of an oath, or an equivalent affirmation,
is required for the reception of testimonial evidence, from
which it follows that one witness, who is himself under
that sanction, ought not to state what another had said
who was under no such obligation to tell the truth, and
whose veracity cannot be tested by cross-examination, or
the other means of discovering it. But there are necessary exceptions to this rule, and the code has not left
them to be ascertained by judicial legislation. They are
the following:
A witness may declare what the party to the suit, his
agents, or other persons who could have bound him by
their contracts, or those under whom such party claims,
have said, when such proof is required by the opposite
party. What has been said relative to the matter in
dispute in the presence and hearing of one party to the
suit, may be given in evidence by the other, as a
foundation for a presumption to be drawn from what he
said, or did, or from his silence. What a witness has
said when he was not under oath may be proved, to show
that it was consistent or inconsistent with his testimony.
If a witness has been examined on a former trial between
the same parties, for the same cause, what he has said
may be related by another, if such witness be dead, or
his testimony cannot be procured. In cases of homicide,
what the deceased has said, after receiving the wound, in
relation thereto, may be given in evidence, if his
deposition could not, from circumstances, have been




THE CODE OF EVIDENCE.            483
taken. When the declarations of a party, or a witness,
under the first or second of the exceptions before mentioned, are given in evidence, any thing said by another
person, which is necessary to contradict or explain what
was said by such party or witness, may be given in
evidence. As proof of the hand-writing of a witness,
who is dead or absent, may, in certain cases, be admitted
as a presumption that he would not have signed if he
could not prove the execution; so any material declaration of such witness, to rebut this presumption, may be
related. In cases not depending on scriptory evidence,
a party is permitted by the code to give evidence of what
he himself said or did at the time of the transaction in
relation to the matter in litigation, in order to explain
his intentions; but in this, as in other cases, he may be
examined on the trial by the adverse party. There is a
species of evidence that is only acquired by information
from others; it is that usually called a fact of public
notoriety,-such as pedigree, and other facts of the same
nature. These are enumerated in the code, and the proof
of them allowed.
A short section declares that the rules for receiving
the oral declarations of a witness apply to their examination on interrogatories; and direct, that, whenever the
deposition of a witness is taken in writing, the question
as well as the answer shall be written, and the answer
recorded as given.
This finishes all the provisions of the code in relation
to testimonial evidence.
The next head is that of scriptory evidence, which
includes all kinds of written proof, except the examination of witnesses when their evidence is reduced to
writing; the term SCRIPTORY having been used to designate this division, because that of written evidence would
have comprehended testimonial evidence, when reduced
to writing, as under our code of practice it always
may be.
To argue the advantages of this species of evidence, to
speak of its certainty and durability, would be a useless




48 4           INTRODUCTORY REPORT TO
task, when addressing the legislature of a state in which
those advantages have been so wisely secured by laws
directing its employment in so many instances, and
under such a variety of sanctions as in this. Of writings,
which may become matter of evidence, some purport to
express the will of those by whom they are made; others
are only declarations of facts. Of the first kind are those
which are called the acts of the parties whose will they
purport to declare. Of the second are the attestations of
public officers, declaratory that certain of the acts were
really made by those parties; and also, the written
depositions of witnesses. With the last, the depositions,
we have nothing, as has been said, to do in this division.
The mode of taking them, and their effect, and the
persons by whom they may be made, are pointed out in
the Code of Procedure, and in the former part of this
report. The other kinds of scriptory evidence, properly
so called, are divided by the code into two kinds, authenticated and unauthenticated.
I. Authenticated acts are defined to be "such instruments in writing as are attested by a public officer, legally
authorized for that purpose, in the form prescribed by
law." It will readily be seen that the evidence here is
of two kinds. The expression of the will of the party, as
contained in the act, and the declaration of the attesting
officer, that such writing does contain the will of the
party, and to avoid any misunderstanding of the effect
of such evidence, the code provides, that it shall be proof
only of that which is specially attested by the officer to
have been done in his presence, and nothing more, and
exemplifies its intent by some of the most common cases
in which this species of evidence is produced. A bill
attested by the signatures of the president of the senate,
of the speaker of the house of representatives, and of the
governor, is an authentic act; but the signatures prove
only that the bill to which they are affixed has been
passed by the two houses respectively, and has been
approved by the governor. The signature of the governor
to a proclamation, under his seal of office, offering a




THE CODE OF EVIDENCE.            485
reward for apprehending a person accused of murder, is
authentic evidence that such proclamation was issued on
the day it bears date, that complaints were made to
him of the commission of the offence, the flight of the
defendant, or any other fact which he certifies to have
been done in his presence; but it is not evidence that
the crime was actually committed, or that the party fled.
The code divides authentic acts into four kinds: legislative acts; records of courts; records of the different
executive governments, made in the legal administration
of its different departments, which are declared to be
authentic acts; and written instruments, made in the
presence of, and attested by, such public officer as is for
that purpose commissioned according to law, and purporting to testify what is said, done, or contracted by those
whose acts they are.
i. A section directs the manner in which legislative
acts are to be proved. In this the present law is not
changed, as now the production of the original of an
attested copy, or of the statutes printed by the state
printer, are considered good evidence.  The provision that
an error in either of the kinds of copy may be alleged,
and proved by collating them with the original, is also, I
apprehend, the law at this time; but it was thought
advisable to insert it in terms. The mode of proof of
public and of private acts, is declared to be the same.
The court is directed, ex oficio, to take notice of public acts
and to carry them into effect, whether pleaded or not;
but the party relying on a private act for the support of
a right, or the privilege of an exemption, must allege and
prove it.
Private legislative acts are those which concern designated individuals only. All others are public acts. All
acts of incorporation, made for regulating the police or
local government of any part of the state; for the
establishment of the banks; for authorizing the imposition of a toll, of tonnage, wharfage or othler duty; for the
establishment of hospitals, or other purposes of charity,
or the promotion of religion, education, or science, are




486            INTRODUCTORY REPORT TO
specially declared to be public, and all other incorporations to be private acts. But it is provided, that this
enumeration is intended solely for the purposes of this
title in the code, and does not affect the nature or definition of corporations established by law.
2. Judicial records are, in a section under that title,
defined, and the mode of authenticating them in the
several cases of their being those of a court in this state,
in another state, or in a foreign country. A new provision is introduced to guard against surprise and fraud.
It directs that whenever the certified copy of a foreign
judgment is intended to be produced as evidence, it
must be filed a specified time before the trial, and notice
given to the opposing party; and if he shall object to the
introduction of such copy, the party introducing it must
have it collated with the original and proved, either by a
witness or on commission; and that if the copy filed
shall be thus proved to have been a true one, the additional expense shall be borne by the objecting party.
The effect of judgments, in other states of the union, or
in foreign countries, as evidence, is declared to be the
same as is directed in the code, in the chapter on Res judicata, in relation to judgments in this state. But it is
specially provided that no judgment rendered in a suit,
commenced by a proceeding in rem, whether by attachment or otherwise, shall have any effect of the res judicata,
except so far as respects the thing seized, unless the
party have appeared either in person or by attorney and
defended the suit.
To avoid the enormous expenses attending the introduction of proceedings in Admiralty, when necessary as
evidence, it is provided, that whenever the object is to
prove a condemnation in a foreign court of Admiralty, no
other part of the record but the libel and the condemnation need be produced for that purpose; and that no
evidence taken in such cause shall be evidence between
the same parties of any other fact than that in contestation in such cause.
3. The next section provides for what is thought to be




THE CODE OF EVIDENCE.            487
a desideratum in our present law. It gives an enumeration of the acts of the executive government which are
to have the force of authentic evidence, and the mode of
their authentication. This needs no elucidation. A reference to the section itself is all that is necessaryv, both
for its purport and for the reasons of the different provisions it contains.  It may be proper, however, to remark,
that while special laws provided for giving the force of
authentic acts to the records of courts and notarial
proceedings, the equally important documents of an executive nature were left for their authenticity to the
discretion of the courts; which admitted or rejected them
and gave what degree of force to them that their judgment directed, without any fixed rules, which, for the
first time, are established by the proposed code.
4. Notarial acts, and the various provisions necessary
to establish their validity, provide against their abuse,
designate their effects, and point out the cases in which
they may be declared void, are necessarily a most important subject in the Code of Evidence. Forming, as
they do by our law, the principal means by which sales,
contracts, donations, testaments and declaratory dispositions, in all their various forms, are to be witnessed;
every provision in relation to them ought to be generally
and minutely known; and for that purpose should be
clearly and particularly expressed. This it has been the
endeavour of the reporter to do in the three subsequent
sections of this chapter.
The first of them describes the nature and prescribes
the requisites of a notarial act, in which there is little to
claim particular attention, as the provisions are chiefly
those contained in different laws and decisions on the
same subject, collected in one view, and enforced by
precise enactment, which a reference to the section will
fully explain without comment.
The same observation, in substance, may be made on
the subject of the next section, which treats of the effect
of notarial acts, in relation to those who are parties to
them; and in the few cases in which they may bhear upon




488            INTRODUCTORY REPORT TO
the rights of others, the laws and decisions on the subject are embodied and reduced to short and, it is hoped,
clear precepts, which are illustrated by examples, and
some new provisions are introduced which require no
explanation.
" For what causes and in what manner notarial acts
may be declared not authentic," is the title of the last
section relating to this matter. The silence of our present law on this important topic, required the greatest
care in the reduction (a) of this part of the code, and
imposes the necessity of some elucidations.
The distinguishing characteristic of a notarial act, that
it is authentic evidence, in other words, that it is conclusive evidence, against those who are parties to it,
rendered it necessary that many formalities should be
required in passing it to secure the parties, as well as the
public, from imposition. These are minutely directed in
a section which has already been referred to. No officer
at all attentive to his duty, no party not entirely negligent of his interest, can mistake them. When they are
not attended to, a presumption will naturally arise that
they have been omitted for some sinister end, and the
natural corrective would be punishment. This, as regards
the officer, has been provided for by the Code of Crimes
and Punishments, in the shape of a personal penalty.
As respects the parties, the remedy is not so clear. To
inflict a punishment on both would be clearly unjust, for
one must be the party injured.  To inflict it on either
would, in many cases, have the same character.  The
party really consenting to the omission, may be the one
injured by the neglect; while the other, naturally careless of what it was the peculiar interest of the one with
whom  he contracted to  observe, would overlook the
(a) This word is not English, but I have ventured to employ it, from
the absolute want of one to express the act of preparing for publication
a work, neither entirely compiled from pre-existing materials, nor
entirely of original composition, but like the code I now present. If
there be an equivalent term in the English language, it does not occur
to me.




THE CODE OF EVIDENCE.           489
omission of formalities, by the neglect of which he could
only gain. To illustrate my meaning by an example. A
sale is made before a notary, who does not call on the
witnesses required by law to sign the act. The notary is
justly punishable for a neglect of official duty; but a
personal penalty on either the purchaser or seller, would
be unjust: on the purchaser, because he is the loser by
his defect of title; on the seller, because, having received
his consideration, he would leave the examination of the
conveyance to the purchaser, contenting himself with the
perusal of the act, to see that he conveyed what he had
a right to convey. As to the parties themselves, some
other provision was necessary to excite their attention to
the observance of forms, rendered necessary by the
general policy of the law. The means for enforcing the
provisions of the law, which first present themselves, are
those which operate on the act itself. The contract depends on the consent alone of the parties; the means of
enforcing it on the legislative will. To this there is no
injustice in annexing conditions. "I will provide," says
the lawgiver, " an officer who shall draw your contracts,
who shall give themn legal forms and put you on your
guard against imposition, who shall record and preserve
them, who shall furnish you with copies when you want
them, which copies shall have all the force of originals;
but it is on condition that the plain rules which I prescribe, to guard against fraud, error and confusion, shall
be strictly observed. It is your interest as well as your
duty, if your intentions are correct, to observe these rules
on your parts, and to see that they are observed by those
with whom you deal.  If you do not, the condition is
broken, and you lose the advantages you would have had
by observing them.  I will punish my officer when he
wilfully or negligently omits to perform his duty: but
unless there is evidence of fraud against you, the only
penalty you incur is the loss of that character to your
contract which the observance of the rules would have
attached to it. Prove your contract in any other way, if
it be a legal one, my laws do not affect them. I will




490           INTROD)CTORY REPORT TO
even allow you to consider the assent given to it by your
signatures as binding; but it cannot be enforced as an
authentic act."  Such language seems to be appropriate
to the occasion in the mouth of a just legislator, and its
substance is contained in this part of the code.  A
notarial act, wanting any of the enumerated formalities,
may be used as an instrument under private signature, if
it have those of the parties; but it is not authentic.
The omission of a necessary formality, which ought to
appear on the face of the instrument, is one of those facts
which the judge is empowered to ascertain by his own
inspection, without other evidence. Other omissions, or
defects, which would destroy the authenticity of the instrument, may be proved by other evidence, the nature
of which is designated in the code.
The cases in which notarial acts may be declared not
authentic, for causes not apparent on the face of the instrument, are specially enumerated.  For any of which,
or for any such defect appearing on the face of the instrument, as is by this section declared to destroy its force
as an authentic act, it is provided, that a suit may be
brought by any one interested, in which suit the objection
to the act must be particularly set forth, or the party
may rely on such objection as a bar to any suit commenced upon it; but in every such case, as well as where
the suit is brought to have the act destroyed, the petition
or answer, and the causes for considering it defective, must
be specially stated. Provision is also made for the production of the instrument and giving notice of the objections to it, when it is used for some collateral point in a
cause, and is not the foundation either of the suit or of
the defence.
Another article specifies the cases in which authentic
acts, not notarial, may be declared invalid.  This,
with the provision that the sentence of a court,
declaring any act to be invalid, shall be noted in the
margin, both of the copy produced and of the original,
concludes what is contained in the proposed code on this
subject; but I cannot dismiss the notice of it, in this




THE CODE OF EVIDENCE.            491
report, without felicitating the legislature on our finding
already established a system so admirably adapted to its
purpose as that of transfers by notarial acts. With the
firmest conviction of its advantages over every other
intended for the same ends, it would have been difficult,
if not impossible, without the experience we have had,
to have forced the same conviction on the people: and
the maintenance of the defective system of registration,
which prevails in all the other states with more or less
of inconvenience attached to each, is a convincing proof
of the difficulties we should have had to encounter if we
had been under the necessity of removing the one of
these plans to make way tor the other.
II. We come now to consider scriptory evidence, of
less authority than that which is declared to be authentic.  This inferior evidence is of two kinds; that
which is attested by the signature of the party whose
act it purports to be, and is called an act under private
signature; and all other written evidence not so attested.
1. The difference between authentic acts and those
now under consideration, with the reason for their different weight inll the scale of evidence, is explained in
the code. No writing, it is said, is in itself evidence of
the truth of that which it contains: it shows that certain
covenants are written, and that certain names have been
subscribed to them; but it contains no proof that those
names were subscribed, or that those covenants were
agreed to, by the parties. To give them any validity,
there must be some extrinsic evidence. This evidence,
in authentic acts, is supplied by the credit which the
law attaches to the certificate of the public officer, and
to the seal of his office, which the courts are bound,
ex oficio, to be acquainted with. But to acts under
private signature no such credit is given. The production of them does not even raise a simple presumption
of their validity. Proof of their execution is required.
This proof, in ordinary cases, is either the testimony of
a subscribing witness, or of one rwho knorws thle handwrititg,of the party.  The code has introduced another




492           INTRODUCTORY REPORT TO
and more simple mode of proof, to be used at the discretion of the party. It directs that whenever a suit is
brought on an instrument made under private signature,
the original shall be annexed to the petition for the
inspection of the party who shall be summoned to acknowledge or deny the signature.  If it purport to be
his own, he must answer directly to the question, under
the penalty of having an evasive answer construed as a
confession. If the signature do not purport to be his
own, but that of some one whose engagement would
bind him, and he is acquainted with the handwriting,
he must answer whether he knows or believes the signature to be genuine. If he is not acquainted with the
handwriting, he must say so.  If acknowledged, the
instrument then becomes an authentic act.  But evidence may be received of any fact which would show
that, from any cause, it ought not to be enforced. If
not acknowledged, proof must be made as in ordinary
cases. These different effects are particularly set forth
in the code, as well as the circumstances under which
recourse may be had to proof by comparison of hands,
and the mode in which such evidence is to be received.
The perfection with which the handwriting may be
imitated has led to a provision that a comparison of
hands alone, unsupported by other circumstances, shall
not of itself be sufficient evidence, where the handwriting is denied.  The provisions of this chapter are
but a development of the one which has been already
sufficiently commented upon, that which requires the
oath of the party in support of his defence. Few men
would have the hardihood to deny their own signatures,
even without oath, if it were not for the pernicious
practice of throwing the defence of a suit upon the
attorney, who, in the name of his client, every day,
without any blame attaching either to his client or himself, asserts what they both know to be false, by denying
a signature which, in a few weeks, is proved or confessed
to be true. According to the plan proposed, the party
must speak for himself; the instrument is offered for his




THE CODE OF EVIDENCE.            493
inspection, and he must, first by his answer, and afterwards, if required, openly, in the presence of his fellowcitizens and the magistracy of the country, on his own
responsibility, make his declaration of the truth. Thus,
independently of the gain, on the score of public justice,
the members of an honourable profession are no longer
made the instruments of falsehood; and, if any is
asserted, the risk, the shame, and the odium is incurred
and borne by those to whom it properly belongs.
Another and a very full chapter relates to copies of
written instruments as evidence.
It is enacted that attested copies of authentic acts
are exceptions to the rule, that transcripts are not to be
received when the original can be procured. In favour
of copies of other acts no such exception exists. The
different kinds of copies invested with different degrees
of authenticity, are pointed out, and a mode is provided for giving a certain degree of authenticity to acts
under private signature, which is new and requires particular attention.
Whenever the holder of an act, under private signature, fears the loss of the instrument, or of the evidence
by which he expects to substantiate it, he may, at his
own expense, present a petition to a court of competent
jurisdiction, praying that the party who has signed the
instrument may be summoned to appear at the office
of some designated notary, to witness the registry of
the act.
If the party summoned answer that he denies the
signature, its authenticity is tried as in common cases,
and if found for the plaintiff, the registry of the act
shall be decreed with costs. If he confesses the signature, or do not answer, the notary, on seeing a certified
copy of the record, shall proceed to register the act
by making a full copy on his records.  Copies thus
authenticated, are full proof of the signature, but do not
entitle the party to prompt execution, as is the case
with authentic acts. They are called copies informt, but
cannot be produced without proof that the original is lost




494            INTRODUCTORY REPORT TO
or destroyed.  On proof of loss only, security is required
against the appearance of the instrument in the hands of
a bona fide holder, after public notice. When destruction
is proved, no such security is required.
Acts under private signature may also be authenticated
and registered by the consent of the parties, testified by
their signatures in the presence of the notary, so as to
produce the effect of copies in form.
Even without any judicial order, and without the consent of the party signing an act under private signature,
it may be transcribed in his register by the notary at the
request of the holder. This is called an informal copy,
and can serve only the following purposes: to become
the foundation for a prescriptive right from the time of
the registry; when the original is produced, but the time
of its execution is in dispute, to verify that execution up
to the time of its registry; after ten years' uninterrupted
enjoyment under it, it has the force of an authentic act;
and, connected with other circumstances, it forms presumptive proof of the execution of the original and of
its contents.
The originals of acts under private signature may also
be placed in deposit on the records of the notary, preceded
by the declaration of the depositor, signed by the parties
making the same, and attested by the notary. Attested
copies of such act are authentic evidence against all who
have signed the same.
A concluding section of this chapter directs the mode
in which acts under private signature should be signed
and attested; declares that they may be made the evidence of all kinds of obligations or declarations, except
those that are specially by law declared to be made by
authentic acts; and contains provisions to guard against
fraud and imposition upon the illiterate.
2. Writings, even not signed by the parties, may furnish evidence of the presumptive kind. This species of
evidence is of two descriptions. Those which appear to
have been prepared for signature, but, not having received
it, are imperfect; such as wills, contracts, declarations of




TIIE CODE OF EVIDENCE.          495
trust, &c., and to those which from their nature were not
intended to be signed; of this kind are entries in books,
family records of births, &c.
Writings of the first kind are never admitted as direct
proof of the disposition of which they would have been
the evidence, had they been perfected. They may be
presumptive evidence-first, of the intent to make the
contract or disposition, when such intent is material to
the issue; and secondly, of the truth of any enunciation
in the writing, or of tile knowledge which the party had
of such fact.  But in no case can such writing be admitted at all, unless it be in the hand-writing of the party
against whom it is offered, or proved to have been made
by his direction, or approved by him  after it was
made.
Writings of the second kind, when made by the party,
by his direction, or approved by him, may also be admitted as presumptive proof of that which they enounce.
But in both cases, the party may be admitted to state,
on oath, the circumstances under which such writings
were made, and to explain their intent.
All the kinds of scriptory evidence we have been considering, are such as were made by the parties against
whom they are offered, or by their direction. Of another
description are those writings, including printed papers
and engravings, which are made by others. These are:
Historical works to elucidate any public fact that may
become material in a litigated case.
Books of art or science-when anything appertaining
to the branch of learning of which they treat is in
dispute.
Maps or plans, to elucidate questions of locality;
but these are subject to restrictions contained in the
code.
Accounts stated, or calculations made by persons who
prove them to be correct.
Nautical or other almanacs, whenever material to the
issue.
This finishes a review of the important title of Scrip



496           INTRODUCTORY REPORT TO
tory Evidence: a source from which the most contradictory effects have flowed. If on the one hand it gives the
means of precision and permanence to engagements, those
very qualities make it in many instances, the instrument
of fraud and imposition upon ignorance. Its quality of
precision makes verbal explanation in most cases dangerous, and the rectification of error inconsistent with rules
which it would be improper, in general, to violate; and
its permanence makes it outlast the evidence, which
might serve to show the causes why it ought to be declared invalid even in the few cases where such evidence
would have been permitted. Tts superior rank in the
scale of evidence, too, makes it a stronger temptation to
fraud, in the shape of forgery.  These and other disadvantages should be considered, and, as far as possible,
counteracted by legislation. No means of effecting this
desirable end appear to promise such good results as a
wise system of registration; and of all those systems,
none appear equal to that which is in force in this state.
The provisions contained in the proposed code have been
framed for the purpose of bringing it nearer to that perfection to which, by adopting the plan for gradual improvemlent pointed out in the beginning of this report, it
is devoutly hoped it may answer.
In no other state is any other provision made to counteract a fraud, which has been practised, and will be
practised, in spite of all general laws against that offence.
This is the process: a deed is forged, or fraudulently
altered; it is proved by a perjured, mistaken, or ignorant
witness, before a magistrate-in some states, even before
a magistrate residing under another jurisdiction, and
therefore not amenable to its laws; this magistrate allows
it to be recorded; it is transcribed on the record, and
returned to the party, and by him destroyed. The copy
from the record is then evidence; and the means of
detection, by showing the signature to be forged from a
comparison of hands and other circumstances, is lost. In
our system, which ought to be examined, and deserves to
be imitated by the other states, no such frauds can be




THE CODE OF EVIDENCE.            497
committed. Publicity is secured in all cases in which
the general welfare requires it; secrecy provided for,
when the public interest will not suffer; permanence and
security given to the originals of all important papers;
and imposition upon the ignorant and illiterate prevented
by the scrutinizing supervision of a public and responsible
officer.
A short title of one chapter contains all that seemed
necessary relating to substantive evidence.
When we reflect that from the very definition of
this kind of evidence it must always be supported by
testimony, to show the connexion of the object produced
with the circumstances of the case; it will be evident,
that it must be governed by the rules laid down in rela.
tion to that kind of evidence which serves to introduce
it. A few illustrations and examples are given in the
code to give a full understanding of the nature of this
evidence. The mark on a tree coinciding with that stated
by scriptory or testimonial evidence, in cases of disputed
boundary, is substantive evidence of a landmark. The
number of concentric circles in the wood that has grown
over the mark, is substantive evidence of the number of
years that have elapsed since it was made. Yet the mark
itself is no evidence, unless supported by proof of the
circumstances under which it was made.
Having considered all the divisions of evidence in relation to the source from which it proceeds, we come now
to consider it in relation to the degree of weight it is
calculated to have in producing that conviction in the
mind, which is the object of all judicial evidence. The
divisions in this view, and in the ascending scale, are, as
we have seen, presumptive, direct and conclusive. But
for one consideration this division would not be necessary,
except for developing the nature of evidence, not for
directing the mode of its admission; because, conviction
of the truth, being the result of an intellectual operation,
the degree in which evidence of any kind is to operate can
never be prescribed; and it would, therefore, have been
proper only in a theoretic view to have indicated these
2 i




498           INTRODUCTORY REPORT TO
divisions, but for certain positive enactments which, forming part of our civil code, it does not come within the
intent of the legislature to alter or repeal by this code.
These enactments declare what evidence, in particular
cases, shall be considered as presumptive, and what others
conclusive testimony. This can, in effect, be no more
than directing what judgment shall be given when particular testimony is adduced; because, as has been said, no
law can control the operations of the mind. Yet as the
effect of the different descriptions of evidence is directed,
it became necessary, in a code on that *subject, to give
these divisions a place. In another point of view, also, it
would seem to be proper. The authority of nature, as
well as that of positive law, has decreed that on a well
organized mind, all events happening according to her
invariable course should be considered as true; and
allegations of fact, contrary to such course, as false; hence
a second source to which we can refer conclusive, and in
some instances presumptive, evidence. These considerations have induced the insertion of chapters corresponding to the three degrees of evidence which have been
enumerated.
1. The first of these, presumptive evidence, is of two
kinds, which cannot be brought under the same general
definition: the one, simple presumptions, arising from the
operation of the mind of the judge drawing from the
existence of one fact, which has been proved, the inference
that another, which has not been proved, exists also; the
other, legal presumptions, are those which are made by
the law itself, and which the judge is forced to adopt,
whatever may be his own conclusions from the facts.
Illustrations of the former are given in presumption, drawn
from the structure of the human mind; such as that a
man of good character will not do an unworthy act-that
a mother will not abandon her child —and, from the common course of business, that if the obligation be delivered
to the debtor, the debt has been paid. As examples of
legal presumptions, are given the following, which are
directed by law: that he who has possessed real estate




THE CODE OF EVIDENCE.            499)
for a year, is the owner; and that when no time is expressed for the continuance of a predial estate, it shall be
deemed to have been intended for a year. The effect of
these presumptions is directed to be, that the fact presumed shall be considered as proved, unless the contrary
be shown by other evidence.
Presumptions can only be raised by legal evidence;
therefore, nothing can be the legal foundation for a presumption but that which can be legally given in evidence;
and it is further provided, that simple presumptions must
be founded, first, on the establishment of some fact
by legal testimony; secondly, by such deduction from
that fact as is warranted by the usual propensities or
passions of men-by the particular habits or passions of
the individual whose act is in question-by the usual
course of business, or by the ordinary operations of
nature.
2. Of direct evidence, little more need be said than
to give its definition, which is, that which, if true, conclusively establishes the fact in question. It, therefore,
can give rise to one inquiry only —whether the fact stated
be true; and as this inquiry must be pursued in the ordinary form, the rules for conducting it must be sought
under other heads.
3. Conclusive evidence forms a more comprehensive
title. Every species of proof may produce conviction in
the mind of the judge, and any evidence producing that
conviction would, in one sense of the word, be deemed
conclusive. But in this code, that term is applied exclusively to that which is declared to be such, by it, or
by other provisions of law which it does not alter or
repeal.
It may, perhaps, seem inconsistent with the principles
on which this code is founded, for the legislature so far
to interfere with judicial discretion in judging of the
force of evidence as to declare, that any proof shall be
considered as conclusive of any litigated fact. In many
cases, as has been observed, the interference is but
nominal; and the legislative phraseology would be more




500           INTRODUCTORY REPORT TO
correct if, instead of declaring that such a fact, or such
evidence, shall be presumptive proof of such another
designated fact, it were to direct in cases of legal presumptions, that when such a fact should appear in
evidence to the judge, then he should give judgment in
the manner directed by the law, unless counter evidence
were produced by the opposite party; and in case of conclusive evidence, that, whenever the designated fact
should be proved, he should give judgment in the manner
designated, without hearing other evidence. But in
whatever manner the legislative will is expressed,whether in the incorrect mode of directing the judge
what to believe, or in the more proper manner of directing him what to decide, —is not so material as to inquire
for the reasons why any such directions should be given
in any form. Uniformity in judicial decisions, it will
be allowed, is a very desirable object in the exercise of
jurisprudence. By this is meant, the same deductions from
the same facts, applied to similar circumstances.  The
cases in which this can be procured by legislative interference, without injustice, are few; and the probability of
the reverse —that is, of different decisions, although the
proof and the circumstances may be the same —is very
great; because, the minds of men being differently
organized, there are not many things in which all would
agree. If this be the case, when not only the evidence
but the circumstances of the case on which it is to
operate are the same, how much more is it to be expected
where these circumstances exhibit shades of difference?
Yet there are cases in which, at the risk of producing
particular inconvenience, the general welfare requires
that this uniformity should be preserved; which can
only be done by directing that, whatever may be the
opinion of the judge, his decree shall be rendered in
conformity with the directions of the statute, whenever
the evidence it, for public purposes, considers as conclusive, shall be produced. Without multiplying examples, that of the authentic act may sufficiently
illustrate what has been said on this subject.  The




THE CODE OF EVIDENCE.            501
authentic act, as we have seen, is conclusive evidence of
the truth of all that is certified by it to have been done
in the presence of the public officer, before whom it has
been passed. Different judges, from different views of
the subject, might not receive an equal conviction of the
truth of what is declared by it. To such it would not
be conclusive evidence. There would, then, be no uniformity of decision on the validity of such instruments;
but public convenience and utility require, that the
holder of such an act should rely upon the faith of the
officer's certificate; therefore, the law wisely declares,
that it shall be conclusive testimony, although, in some
instances, carelessness or ignorance may have consented
to its execution, when it did not contain the stipulations
that were intended. In this, however, as in all other
cases where evidence is declared to be conclusive, provision is made for annulling the act whenever fraud,
error or force has intervened. So the record of a judgment is conclusive evidence that the party in whose
favour it was rendered, was entitled to the relief which
it purports to give. Yet the judgment, in some particular case, may have been unjust, and the judge, before
whom it is produced as evidence, may be convinced that
it was so.  But the individual interest, in this case,
must be sacrificed to the stability of the general rule, it
being more expedient that one unjust judgment should
be carried into execution, than that all judgments
should be open to contestation, whenever they were
produced as evidence of the claims which they have
sanctioned.
This code only refers for illustration to some enactments belonging to the Civil Code and other general
laws, by which certain evidence is declared conclusive.
It does not detail them, but it enforces their provisions;
shows that the objects they are intended to attain are to
diminish litigation and lessen the temptations to perjury;
and divides them into positive enactments for the purposes just mentioned, and those which are declaratory of
the usual course of nature. Examples of the first are




502           INTRODUCTORY REPORT TO
offered in the authority given to judgments, to authentic
acts, and to judicial confessions; and of the last, in the
provision of our existing law, that the birth of a child,
more than three hundred days after the death of the
husband, is conclusive proof that the child is not his.
In the enumeration of evidence, declared to be conclusive, the item of judicial decrees is the most important,
both for the frequency of its occurrence, and the difficult
questions to which it gives rise. A whole chapter is
devoted to this subject. It contains few provisions entirely new; but, it is believed, that the several sections,
directing what judgments are valid as res judicate —which
cannot have that effect, and against whom they may be
given in evidence, will obviate many of the difficulties
that have hitherto attended this subject; and that, if
adopted, a ready solution will be found to most of the
questions to which it has given rise.
Another species of evidence -which under certain circumstances, is conclusive, arises from the confession of
the party.  Confession, in relation to the manner in
which it is made, is either judicial or extra-judicial.
The former, being that which is made in some writing
forming a part of the judicial proceedings in a cause;
or when it is made before a person authorized by law to
receive the same, and reduced to writing in the manner
prescribed by law. The latter are confessions made in
any other manner.
In relation to the matter, confessions are either full,
or partial only. Full confession is that which acknowledges the fact alleged with all its material circumstances, so as to leave nothing to be supplied by other
evidence. Partial confession, is that which acknowledges
some circumstance from which an inference may be drawn,
so as to make it presumptive evidence.
In civil cases, where every proceeding made by the
parties is in writing, and after full deliberation, a judicial confession is declared to be conclusive evidence, if
not recalled, and after a reasonable term for deliberation,
shown to the satisfaction of the judge to be erroneous;




THE CODE OF EVIDENCE.            503
but restrictions are added, to prevent vexation by making
and capriciously retracting confessions.
In criminal cases, however, no confession, whether
judicial or extra-judicial, is conclusive testimony of
guilt.  The reason of this difference is evident.  Insanity, promises, fear, hope of liberty or pardon, may
produce a confession contrary to the fact; and therefore,
although the confession is strong evidence, it is always
open to be rebutted by any other that would lessen its force.
Even the answer of "guilty" to the arraignment is
not a sufficient ground for passing sentence, until the
necessary inquiries as to the sanity of mind in the
prisoner and the existence of the other causes have been
made. When we reflect on the numerous instances in
which men have confessed themselves guilty, not only of
crimes which they had not committed, but which were
impossible to be committed by any one, the necessity of
these precautions will be admitted.  The inexplicable
state of mind which produced, in so many instances,
confessions of sorcery and witchcraft, may take place in
other cases, although those delusions are over.
By the declaration, that no evidence should be deemed
conclusive but that which is declared to be such by law,
that which operates as such by our present law under the
title of estoppel, is of course abolished; but for greater
certainty, that effect is declared by a special provision.
A concluding article contains the necessary notice that
nothing in the code shall be construed so as to dispense
with the proof required by the Civil Code or other
statutes, to give effect to certain contracts or testamentary
dispositions, or to enforce the registry or recording of
acts, or prove legitimacy, filiation or civil condition. A
detail of the evidence, required in these and similar cases,
did not form a part of this code, because they could not
have been inserted without repeating the provisions of the
laws of which they form a part, which would have intermixed two distinct branches of legislation, required by the
policy of our law to be kept separate.
Before I close the report, it may be necessary to ac



504  INTRODUCTORY REPORT TO TUE CODE OF EVIDENCE.
count for an omission in the work-that of not designating
the evidence required or permitted in each separate species
of civil action and criminal procedure. It is easy, however, to show that this would have been unnecessary and
injurious to the simplicity of the plan that has been
adopted.
By our excellent system of civil law, a plaintiff can
succeed only by stating such facts as entitle him to relief
according to law; and by proving those facts. In these
two operations he must be directed by two different codes.
The Civil Code informs him what circumstances give him
the right to recover; and it is the province of the Code
of Evidence to direct in what manner the proof shall be
made; not of the facts in that suit only, but of all facts
in any action. To direct what facts are necessary to be
proved, in order to be restored to a possession which is
wrongfully withheld, to enforce the payment of a debt,
or obtain damages for a wrong —could only be done by
repeating the substance of the Civil Code, and would,
therefore, be misplaced in the law of evidence, which
ought to contain only general rules, applicable to the
different species of evidence, not to particular actions in
which that evidence may become proper or necessary. It
is the same as regards the defence: the Civil Code directs
what circumstances will justifv an act that would otherwise be wrongful: and the Code of Evidence tells us, by
the application of its general rules, how those circumstances are to be proved. So in criminal prosecutions;
the acts or omissions which constitute an offence, are
designated in the Code of Crimes and Punishment, and
consequently we need no other guide to discover what is
necessary to be proved in any particular prosecution.
Why, then, should it be repeated in the Code of Evidence?
A contradictory practice on this point, together with
the necessity of arranging and weighing the authority of
the contradictory or explanatory decisions, in every controverted case, has rendered the English law of evidence
so extremely voluminous, and contributed to increase its
uncertainty.




INTRODUCTORY REPORT
TO THE
CODE OF REFORM AND PRISON DISCIPLINE.








INTRODUCTORY REPORT
TO THE
CODE OF REFORM AND PRISON DISCIPLINE.
IN offering to the legislature a system of penal law, the
principal sanction of which is imprisonment, it is scarcely
necessary to remark, that its whole efficacy must depend
on the manner in which confinement is to be inflicted as
a punishment, or used as a means of detention; in other
words, on the wisdom of the Code of Prison Discipline.
In preparing the plan now submitted, I kept in view, as
the great objects to be attained-restraint, example and
reformation. To discover what species of seclusion would
best produce these ends, rigidly to direct every privation
necessary to attain them, but to inflict no evil greater
than was required to produce these consequences, would
seem at first view a comparatively easy task; but the
selection of proper means, and the details required for
their application, presented difficulties in the execution
only to be overcome by the closest attention to facts, and
the most cautious calculation of consequences. A statement of these facts, and an exposition of the consequences
drawn from them, will enable the House better to understand and decide on the plan which I have the honour to
propose.
At a time when the penal law of Great Britain, still
liable to the reproach of unnecessary severity in its enactments, and barbarity in its executions, had received none
of those improvements which the true principles of jurisprudence have since produced, the benevolent heart and




508           INTRODUCTORY REPORT TO
enlightened mind of the legislator of Pennsylvania
suggested the substitution of solitary imprisonment and
labour for the punishment of death. The beneficial effects
of this change were felt until they were counteracted by
the intolerant and sanguinary system of the common law
of England, enforced by the paramount authority of the
mother country. But no sooner did independence confer
the power of consulting the public good, than the people
of Pennsylvania made the reformation of the penal code
a constitutional obligation on their representatives; and
amidst the confusion produced by foreign invasion and
civil discord in the revolutionary war, a society worthy
of the city of " brotherly love " was formed for the relief
of distressed prisoners. With persevering benevolence,
they not only relieved the victims of the inhuman system
that then prevailed, but, by unceasing appeals to true
principles, induced the legislature of that state to begin
the great reform. In all but two or three cases, the
punishment of death was abolished: labour was substituted for loss of life and stripes; but contrary to the
opinion early expressed by the society in favour of solitary
labour, that on the public works was adopted. The error
was a radical one: debasement, corruption, and an
immediate repetition of crime, were the consequences;
and the failure of this experiment with any but a wise
and reflecting people, might have been fatal to the system.
But, happily for Pennsylvania, and perhaps for the world,
she had enlightened men to frame her penal laws; and
happier still, she had a class of citizens admirably calculated to execute them with the zeal of enthusiasm. The
founder of that state, and his first associates, belonged to
a sect which fitted them, by its principles, and by the
habits and pursuits which it created and prescribed, to be
the agents of a reform in jurisprudence similar to that
which they adopted, and perhaps carried to excess, in
religion. Their descendants, with less of that enthusiasm
which in their ancestors was exalted by persecution, had
all the active benevolence and Christian charity necessary
to prompt, and the perseverance and unwearied industry to




THE CODE OF REFORM AND PRISON DISCIPLINE.   509
support their exertions.  Abstracted  by their tenets
from the pleasures which occupy so large a portion of life
among other sects; equally excluded from other pursuits
in which so many find occupation; freed from the
vexations of mutual litigation by submitting every
difference to the umpirage of the elders, and from the
tyranny of fashion by an independent contempt for its
rules, the modern quakers devote all that time which
others waste in dissipation, or employ in intriguing for
public employment, to the direction of charitable institutions, and that surplus wealth which others dissipate in
frivolous pursuits, to the cause of humanity.  In every
society for promoting education, for instructing or supporting the poor, for relieving the distresses of prisoners, for
suppressing vice and immorality, they are active and
zealous members; and they indemnify themselves for the
loss of the honours and pleasures of the world by the
highest of all honours, the purest of all pleasures-that of
doing good.
To these men, and others who participated in their
principles, was committed the task of uniting reformation
and punishment, when seclusion was substituted for the
public labour to which the convicts had before been exposed.  The most-encouraging resultsjustified the change
in the law, and the selection of persons to whom its execution was committed; and from the year 1790, when it
took place, until 1793, we have the official attestation of
one of the inspectors (a), that out of 200 convicts who
had been pardoned, only four were returned on a second
conviction; that only two cases of burglary, and not one
of privately stealing from the person, had occurred; that
the streets and roads were freed from robbers, and
that in all the prisons for the populous city and county of
Philadelphia, immediately before the sitting of the court,
only four persons were in custody for trial. This last is
a striking fact. The city and county of Philadelphia, at
(a) A member of the Society of Friends, who has rendered the name
of Lowndes as celebrated for active, enlightened benevolence, as a late
lamented statesman has since done for eloquence, patriotism and integrity.




510            INTRODUCTORY REPORT TO
that time contained upwards of sixty thousand inhabitants, and prior to that time, more than thirty had been
condemned at a session, a number which supposes at
least fifty commitments; so that, in the short space of
two years, the effect of the system was the entire suppression of some crimes, and the reduction of others in the
proportion of ten to one, in the place where the example
might be supposed to have had the greatest effect. The
operation of the system in the whole of the state was
nearly as encouraging. Although its population was
increasing in a very rapid ratio, yet conviction decreased
from one hundred and twenty-five, in the year 1789, to
the respective numbers of one hundred and nine, seventy,
sixty-three, forty-five (a), in the four succeeding years.
Thus we find that, although the population of the state
was increasing in a ratio of four and a half per cent. a
year, offences(b) had decreased in the proportion of fortyfive to one hundred and twenty-five, or nearly two-thirds
less; and in the last year I have mentioned, there were
no convictions for one-half of the crimes that had figured
on the preceding calendars. So remarkable a diminution
of crime in a regular decreasing series, is a fact worthy
our most profound attention, when we are considering
the effects of this species of punishment.  Nothing can
develope the true principles of legislation on this subject
more clearly than the history of the reform in Pennsylvania in all its stages.  In  1786, we find that the
various system of labour in the public works was established. Under it, in the three years of its operation, and
the first year after its repeal, but before the effects of the
system could cease, the average number of convictions in
each year was one hundred and nine; in 1791 it decreased
under the new system to seventy-six; in 1792 to sixtythree; and in 1793 to forty-five: all this while the
population of the state and, what is more worthy to be
noted, of the city, was rapidly increasing. This was the
lowest point of depression: from that time the increase
(a) Vaux's Notices.           (b) Seybert's Statistics.




THE CODE OF REFORM AND PRISON DISCIPLINE.  511
has been in a more rapid ratio than the diminution: for
the first four years afterwards, the average was one
hundred and nineteen, and it has gradually progressed
until the average of the last twelve years is three hundred
and eleven; that is, within a fraction of eight times as
many as it was in 1793; but the population of the state
in that time had very little more than doubled (a), so that
crime has increased in proportion to the population nearly
as eight is to two. Most fortunately for the cause of
truth, humanity and wise legislation, the cause of this ebb
and flow of crime is not difficult to discover; and when
pointed out, it will be more persuasive to show that there
is a check that may be effectually applied to the increase
of offences than the most ingenious argument that could
be suggested.
In the three years previous to the year 1790, when
Philadelphia prison was first used for the purpose of
inflicting punishment by solitary confinement, three
hundred and twenty-eight convicts had been confined.
Of these, about two-thirds were committed for short
terms, and others were discharged by pardon; so that at
the commencement of the year 1790, not more than
about two hundred remained. The accommodations of
the prison afforded the means of separation for this small
number, and the humane zeal of the inspectors, quickened
by the natural desire to give efficacy to the plan which
they had themselves formed, urged on the labour and
superintended the instruction of the convicts. In that
year, the first of the experiment, but before its result
could be known, one hundred and nine convictions took
place. In the next, its beneficent effects began to be
felt; the convictions were reduced to seventy-eight, and
in the two successive years to sixty-three and forty-five.
But in the meantime (b) the prison began to be crowded,
(a) Four hundred and ninety-five thousand one hundred and eightyfive, in 1793. One million forty-nine thousand four hundred and fiftyeight, in 1820.
(b) No provision had been made for the increased number of prisoners,
which of all descriptions amounted, in 1 793, to the average number of 450.




512            INTRODUCTORY REPORT TO
solitary labour was necessarily abandoned, even classification became impossible; the same prison serving for
vagrants, fugitive apprentices (a), and those committed
for trial; a relaxation of discipline was the natural consequence of the indiscriminate association, and the
increase of convictions, in every succeeding term of
four years, bears an exact proportion to the increased
numbers in the prison.  This double result of a
rapid and before unheard of decrease while the convicts were separated and employed, and an increase
almost in the same ratio when they were suffered to
associate, seems to solve the great problem of penal
jurisprudence, and points to seclusion and labour as an
effectual remedy for the prevention of crime: for these
effects were produced without any change in the state of
society at the two periods, that could be favourable to
such results; on the contrary, an increase of population
while crimes were decreasing, and the same increase, but
only of one half, in the numbers of the people during
the other period, when crimes increased fourfold. This
practical result, so decisive of the truth of the theory,
founded on a consideration of human nature, with other
corroborating facts, has confirmed me in the design, not
only of persevering in my first recommendation of imprisonment, solitude and labour, in different degrees, and
under different modifications, as the principal sanctions of
the code, but it has become the basis of my whole system
of prison discipline; and from the well attested fact that
a plan, by no means perfect, persevered in for only four
years, banished some crimes, and rapidly reduced the
number of others nearly two-thirds, I draw the cheering
conclusion that, by giving to the system the improvements of which it is susceptible, the sum  of human
happiness may be increased by the repression of crimes
and of the evils which result both from their commission
and punishment.
My position is, that imprisonment, with seclusion and
(a) Petition of the Society for Public Prisons, 1801-1803.




THEi CODE OFi REFORM AND PRISON DISCIPLINE.  513
labour, as a punishment, will diminish the offences forwhich it is inflicted; but that imprisonment without
seclusion will increase them.  What will be the effect of
solitary confinement without labour, remains to be tried.
The Pennsylvania experiment proves conclusively, that
while the numbers were not too great to admit of seclusion, offences diminished; and when it was no longer
practicable, they increased. In all the other states a similar
result has been observed, during the first years. When
there was room for classification, the most sanguine hopes
of humanity were surpassed by the effect (a). But with the
promiscuous intercourse of the convicts, offences increased
both in number and atrocity. This great truth, then, is
supported in both its parts by experiment, the most conclusive of all proof, when it has been so often repeated,
under different circumstances, as to show the uniform
result is produced by the same cause, and when it confirms a theory to which no abstract objection can be conclusively urged. But here the theory is emphatically one
of that kind. Of all the crimes in the catalogue of human
depravity, four-fifths are, in different forms, invasions of
private property: and the motive for committing them is
the desire of obtaining, without labour, the enjoyments
which property brings. The natural corrective is to deprive the offender of the gratifications he expects, and to
convince him that they can be acquired by the exertions
of industry. The remaining portion of offences are such
as arise from the indulgence of the bad passions, and for
those also solitude and employment are the best correctives. But whatever corrects the desire or the passion
that prompts the offence, acts in the double capacity, first
of punishment, until the desire is repressed, and, afterwards, when it is effected, of reformation. As an example,
too, it is infinitely more efficacious than any other penalty.
When it is seen that offences which were committed to
avoid labour and to increase the enjoyments of society,
(a) See reports to the Senate of New York, and the reports of all the
state prisons in the different states.
2 i




514            INTRODUCTORY REPORT TO
lead only to solitude and labour, and that the passions
which caused the more serious crimes, are to be kept
under the rigid restraint of abstinence and reflection, in
the fearful loneliness of a cell; when these examples are
permanent, and by a rigid administration of justice believed to be inevitable, who that studies humlan nature
can doubt the effect?  Therefore, the experiments of
Pennsylvania and of the other states, in the first years of
their operation, as well as their subsequent failure, have
but confirmed a theory true, because it was drawn front
the workings of the human mind. They succeeded at
first exactly in the proportion to the strictness of the
seclusion; they failed precisely in the ratio of its relaxation.
Solitude and labour, then, are the two great remedies.
How are they to be employed? Is the confinement to
be a rigid, unbroken solitude, or only a seclusion from the
corruption of evil counsel and example? Is it to be permanent for the whole term of the sentence, or to be
mitigated by proofs of industry and amendment? Is the
labour to be forced or voluntary, and is its principal
object pecuniary profit to the state, or the means of honest
support to the convict? These are the great questions to
be decided before we enter on the consideration of a
multitude of subordinate details.
When imprisonment and labour were substituted for
corporal punishment, the evils of promiscuous association
became apparent. The separation most obviously required was that of the sexes, and this seems to have been
universally introduced. But it required little observation
or knowledge of human nature to discover that something
more was necessary; that, as a place of punishment, a
penitentiary would soon lose its terrors, if the depraved
inhabitants were suffered to enjoy the society within,
which they had always preferred when at large; and
that, instead of a place of reformation, it must become the
best institution that could be devised for instruction in
all the mysteries of vice and crime, if the professors of
guilt are suffered to make disciples of those who may be




TiEl CODE OF iREFOtM AND PRISON DISCIPLINE.  a15
comparatively ignorant. To remedy this evil, what is
called classification was resorted to; first, the young were
separated from the old, then the analogous division was
made between the novice and the practised offender;
further subdivisions were found indispensable, in proportion as it was discovered that in each of these classes
would be found individuals of different degrees of depravity, and, of course, corruptors, and those ready to
receive their lessons. Accordingly, classes were multiplied, until, in some prisons in England, we find them
amounting to fifteen or more.  But, all this while, the
evident truths seemed not to have had proper force: first,
that moral guilt cannot always be discovered, and if discovered, so nicely appreciated as to assign to each one
infected with it, his comparative place in the scale; and
that if it could be so discovered, it would be found that no
two would be found contaminated in the same degree.
Secondly, that if these difficulties could be surmounted,
and a class could be formed of individuals who had advanced exactly to the same point, not only of offence, but
of moral depravity, still their association would produce a
further progress in both, just as sparks produce a flame
when brought together, which separated, would be extinguished and die.  It is not in human nature for the
mind to be stationary; it must progress in virtue or in
vice: nothing promotes this progress so much as the
emulation created by society; and from the nature of the
society will it receive its direction. Every association of
convicts, then, that can be formed, will in a greater or
less degree pervert, but will never reform, those of which
it is composed: and we are brought to the irresistible
conclusion that, classification once admitted to be useful,
it is so in an inverse proportion to the numbers of which
each class is composed; and is not perfect until we coime
to the point at which it loses its name and nature, in the
complete separation of individuals.  We come, then, to
the conclusion that each convict is to be separated fromn
his fellows.  But is he to be debarred from  all other
society?  In discussing this question we must always




516           INTRODUCTORY REPORT TO
have before our eyes the ends we propose to attain by
the discipline we inflict-punishment and reformation.
So much punishment as is necessary to deter others from
committing the crime, and the offender from repeating it;
every alleviation not inconsistent with those objects, that
will cause the culprit gradually to prefer a life of honest
industry, not from the fear of punishment, but from a
conviction of its utility.  That system of prison discipline
will make the nearest approach to perfection that shall
best attain these objects. In order to judge in what
degree the plan I propose is entitled to its distinction, it
will be necessary to examine other systems, and a discussion of their defects will enable us to discover how far
that which is proposed as a substitute avoids them.
Imprisonment and labour have been adopted, as a
punishment, in fourteen out of twenty-four states. In none
of these has there been, until very lately, any individual
seclusion, except for breaches of prison discipline, and,
during different periods, for the more atrocious offences:
the consequences of this radical fault were such as might
have been expected-an increase rather than a diminution
of crime; and the prodigal, indiscreet and ruinous exercise
of the pardoning power, combined to render abortive the
best experiment ever made for the suppression of vice.
The people who were taxed for the support of these institutions, saw in them only the nurseries of crime,
and were naturally desirous of throwing off the burthen;
and it was made, in one important state, a serious
question whether they should not resort to sanguinary
and infamous punishments. The calm reasoning and
spirit of investigation, which sooner or later resume
their place in the councils of our republics, soon discovered that the experiment had not been fairly tried;
the cause of its failure became apparent; and all agreed
that imprisonment without separation would never
serve either for punishment or reform. Two different
systems were proposed to remedy the evil; one is in the
course of experiment; the other has not yet been examined, but preparations are nearly completed for carrying




THIIE CODE OF REFORM AND PRISON DISCIPLINE.  517
it into effect on a most extensive scale, and in a degree
that must completely test its utility. In New York
there are two penitentiaries, and a third is now constructing: one of them, in the city, is, from its construction, and the numbers confined in it, necessarily conducted onl the old vicious plan, which is to be abandoned
as soon as the third prison is finished; the other, at
Auburn, a village in the interior of the state, is the
model for the new penitentiary, and by the partisans of
the system on which it is managed is declared to be one
that ought to serve as a pattern for all others. That
system is briefly this: absolute solitude during the
night; joint labour during the day, but without any
communication with each other by word or sign; meals
taken at the same table, but so disposed as not to see the
faces of those opposite to them; religious instruction on
Sundays, received in a body; and a Sunday school in
the same manner, twice a day; both in church and
school the same prohibition of intercourse; a full diet of
meat, bread and vegetables; comfortable bedding, in
very narrow, but well aired, well warmed cells, and the
utmost attention to cleanliness in every department of
the prison; visitors are admitted, but without permission
to speak to the convicts, who, on their discharge, receive
a sum not exceeding three dollars, without any relation
to their earnings; their work is uninterrupted during
the day, except by their meals, and is generally contracted for by mechanics, who find the materials.  This
enumeration is not one of what is required, but what is
actually done. And the strictness with which these
rules have been enforced is such, that it is asserted that
among thirty or forty working together for years in the
same shop, no two of them know each others' names.
Mr. Elam Lynds, a gentleman who formerly served in
the army, has the credit of introducing this order; it
was begun with his appointment as keeper of the Auburn
prison, and he has executed it with most astonishing
success in superintending the building of the new prison
at Sing Sing, where he has had two hundred convicts




518               INTRODUCTORY REPORT TO
employed, with no other place of confinement than a
wooden shed, in which they slept, and with only eight or
ten under-keepers and guards; and yet the same industry, order and obedience were preserved as there was
within the walls of the prison. Nothing can be more
imposing than the view of a prison conducted on these
principles. Order, obedience, sobriety, industry, religious
and literary instruction, and solitary reflection, all seem
to promise beneficial effects on the convict, while important points of secure detention and economy are attained
for the state. Yet with all these advantages I cannot
offer this system  for adoption; and my chief objection
arises from the means employed to procure them.  It is
by the lash (a), put into the hands of the keeper, to be
used at discretion, and by a power, strangely, I think,
declared to be legally vested in the turnkey (b). The
objections to this system are obvious. And, first, the
anomaly presents itself, not to call it by a harsher name,
of permitting a punishment to be inflicted at the discretion not only of a man at the head of the institution,
but by his under officers, at their discretion; and that,
too, for disrespect, or the vague charge of disobedience;
which punishment the law has abolished as too ignominious, unequal and cruel to be inflicted by the court for
dangerous crimes. The discretion is limited, say the
court, in their opinion, under which it is to be considered
to  be legal, to  the  enforcement of obedience  for its
object, and in degree to the punishment necessary to
secure it. Can anything be more vague? Obedience to
(a) "It has already appeared that, as a mode of punishment, and as
the means of enforcing prison discipline, in this prison, STRIPES are generally resorted to as a punishment, in the presence of the inspectors; and
to enforce obedience, by the keepers, at all times when necessary. These
stripes are required by the present agent to be inflicted by the keeper
with a raw hide whip, and applied to the back, &c."-Power's Account of
the State Prison at Auburn,  ). 60.
"At Auburn stripes are almost the only mode of punishment." —Report of MIassachusetts Society.
(b) Decision of the court in the case of The People v. An UnderKeeper at Auburn.-Power's Account, p. 62.




THE CODE OF REFORM AND PRiSO0N DISCIPLINE.  519
what?  Lawful colnmmands, is the answer; but it is
unlawful to break any, the minutest regulation of the
prison; it is unlawful to deny any breach of them when
the convict is accused by the turnkey; therefore, if a
convict speak to his neighbour he is whipped, and if he
should deny having done so he is whipped. The very
case in which the stripes were declared lawful, was one
in which they were severely inflicted to make the convict
confess, and when he had confessed, they ceased.  Here
is every character of the torture applied by the lowest
officer in the prison; and this by the court of the state
of New York was declared to be lawful, if the jury
should think that the chastisement was not greater in
degree than was necessary to enforce obedience.  Now,
the obedience required in this case was the confession;
and it follows, according to the decision of the court, that
sucll force as was necessary to this end whs justifiable:
in other words, that torture by infliction of stripes might
legally be used in the state of New York, by a turnkey
against a convict, according to the coimmorn latv,, although
the legislature has enacted, "That if any prisoner in
either of the state's prisons shall refuse to comply with
the rules, it shall be lawful, and is declared to be the
duty of the keepers, under the direction of the inspectors,
to inflict corporal punishment by whipping, not to exceed
thirty-nine lashes, or to confine them. Provided that,
when corporal punishment is inflicted on any person by
whipping, it shall be the duty of at least two of the
inspectors to be present." Then, according to the discipline of the prison, as declared by the court to be lawful,
only thirty-nine stripes can be inflicted at a time for any
offence, and that by order of the inspectors, and in the
presence of two of them; but a turnkey, whenever it is
necessary to enforce obedience, or a confession, may
inflict as many as he pleases, without any witness of his
proceedings.  I have enlarged upon this head more,
perhaps, than was necessary, to enforce the position that
the punishment by stripes was an anomaly even as it is
permitted by law;, and I have detailed the practice inde



520             INTRODUCTORY REPORT TO
pendent of the statute, for the direct purpose of showing
the principle on which the discipline of this prison rests;
and for the incidental one of illustrating, by a striking
example, the difficulty of enforcing a statute in countries
governed by unwritten law. Here, because the common
law permits a schoolmaster moderately to correct his
pupil, and an officer his soldiers, the learned judge
declares it to be law that the turnkey of a penitentiaryan institution utterly unknown to the common law —has
a right to chastise a convict, nay, more, whip him until
he confess himself guilty of an offence; and this, too,
although the legislature has expressly directed that when
he is whipped it shall be by the direction of other officers,
and in their presence. Yet this decision is law in the
state of New York, and is published as the authority by
which the discipline of this prison is maintained.
The next objection to this system is its evident liability
to abuse.  The talent and firmness, tempered by moderation, the knowledge of human nature, and personal
courage of Captain Lynds, who introduced it, and who
began by procuring a waiver of all interference with his
plans by the inspectors, have done much present good;
he has introduced order, economy, industry and cleanliness; he has banished many abuses; and his system,
under his own direction, although liable to strong objections, is yet so much superior in effect to any hitherto
practised, that it has been considered as a model (a) for
the imitation of the world; and in his hands, I have no
doubt, that many beneficial effects will result from it.
But what security have we that the same rare qualities
will be found united in another?  In the communications
I have had with him, he says, that his method may be
easily taught. This may be true, but unless he can impart his integrity and moderation (b) as well as a know(a) Report of the Massachusetts Society.
(b) The case of the keeper, above alluded to, took place, I believe, after
Mr. Lynds had left the Auburn prison, and is itself a strong illustration
of the danger of unlimited delegation of power,




THE CODE OF REFORM AND PRISON DISCIPLINE.  521
ledge of his discipline, it will be unsafe to adopt a system
that must depend entirely for its success on the personal
qualities of the man who is to carry it into effect.
But, e-ven if we were sure of commanding all the requisite
qualities and talents united in the same person, still there
are faults, inherent in the plan, which no administration
can cure. Fear is the great principle of this institution,
and chastisement of the most degrading kind is the instrument to excite it.  If the sole objects were to preserve order in the prison, it is perhaps as effectual, but
certainly not as proper a mode as can be devised. But, as a
punishment, it fails in two essential points; in most cases
it will not deter the party from a repetition of his crimes,
and very rarely will it take away by reformation his
inclination to relapse.  A superficial view of this subject
has led to the belief, that the great secret of penal legislation is, to annex a penalty of sufficient severity to every
offence; and, accordingly, all the variety of pains that
the body of man could suffer, infamy and death, have
figured as sanctions in the codes of all nations; but al
though these have been in a train of experiment for
thousands of years, under every variety that government,
manners and religion could give, they have never produced the expected effect.  The reason is to be found in
that insurgent spirit with which man was endowed by his
beneficent Creator, to answer the best ends of his nature.
The same feeling that elevated, refined, and applied to
the noblest purpose, animates the patriot to resist civil
tyranny, and the martyr to defy the flames, when it is
perverted, and made the incentive to vice and crime, goads
on the convict to arraign the justice of his sentence, to
rebel against those who execute it, and to counteract its
effects with an obstinacy in exact proportion to the
severity of the punishment. If the grossest follies and
absurdest fancies of enthusiasm, as well as the clear truths
and pure principles of religion, are extended and confirmed
by severe punishments and persecution, what more
evident proof can we require, that this character of the
human mind braces itself with an equal energy against




St 2            INTRODUCTORY REPORT TO
bodily suffering, whether inflicted for the correction of
error or the suppression of truth? The convict, therefore,
who has performed his daily labour, even for years, under
the pang or the dread of the lash, will be rather less deterred
from the repetition of his crimes, whenever he thinks
himself secure from  detection, than he would have been
by a milder discipline, because the spirit of hatred, revenge,
and a desire to retaliate on society, are stinmulated and
strengthened by the principles which I have supposed to be
inherent in our nature.  But, as the object of punishment
is not only to prevent the repetition, but also the commission of offences, we must inquire whether this discipline is calculated, in any degree, to have this effect.
Its peculiar characteristic is severity.  We are told,
indeed, that its actual application to individuals is not
frequently required, because of the certainty with which
punishment follows the offence; but the dread of it is
always there, and the uplifted lash, although its stroke is
avoided by submission, is, perhaps, as great a punishment
as the actual pain, because it is attended with the moral
suffering of degradation.  We must repeat, then, that the
nature of this discipline does no more than add severity
to the punishment; and he must be blind to the uniform history of penal jurisprudence, who can believe that
increased severity diminishes the recurrence of crimes.
The same operation of the mind, to which I have alluded,
that gives the energy of mental resistance to the sufferer,
operates by a sympathy invariably called into action, on
all who, by their state in society, their education or manners, have any feelings in common with him; and by the
same system  of severity converts are made to religion,
proselytes to impostures, and accessories to offences. The
system, therefore, to judge from analogy, will not deter.
Will it reform? Judging by the same rule, for, as vet, we
cannot have, in any conclusive degree, the light of experience, I think it cannot.  The force of habits on the mind is
proverbial; but those which have this power, are such as
were either formed in early life, or were produced by
repeated voluntary acts; few instances, it is thought, can




TIlE CODE OF REFORM AND PRISON DIkCtPLINE.  523
be found in which any series of constrained acts, have
produced the habit of continuing them after the force
was removed; but this part of the subject will be more
fully discussed, when I shall explain the reformatory
system  contained in the code which I submit for consideration.  I will only now remark that, so far as the force
is applied to coerce the convict into a knowledge of some
trade, by which he may earn a subsistence, so far it may
produce amendment; but then if the same labour can be
made a voluntary act, the skill attained in it will probably
be more perfect, and undoubtedly there is a greater chance
of its being persevered in.
I conclude, then, that this system, although it avoids
the obvious defect of promiscuous confinement at night,
and, by the strictness of its discipline, prevents many of
the evils attending associated labours by day, still has
defects, that will not permit me to agree with the colllmittee of the Massachusetts Society, in considering it as
a model for imitation. Before I develope the features of
one, in which I think these defects are remedied, while
all its advantages are retained, it will be necessary to
examine the rival plan proposed in Pennsylvania. This
consists in solitary confinement, strictly so called, by
which, say the committee who proposed it, we maean
"such an entire seclusion of convicts from society, and
from  one another, as that, during the period of their
confinement, no one shall see or hear, or be seen or
heard, by any human being, except the jailor, the inspectors, or such other persons as. for highly urgent
reasons, may be permitted to enter the walls of the
prison" (a). To carry this plan into execution a prison
has been erected at Pittsburgh, and another is nearly
completed on a most extensive scale, at Philadelphia.
This last is most admirably contrived for perfect seclusion. The purposes of cleanliness do not demand the
entrance of an attendant, or the egress of the prisoner.
His food is furnished without his seeing the hand that
a) Report, 1821.




524            INTRODUCTORY REPORT TO
brings it; and a complete inspection of every part of
the cell is had, while the prisoner can neither see nor
hear the approach of his keeper; all is silence and solitude, and, if these alone can work reformation, there was
never a building better calculated to produce the effect.
Whether labour is to be permitted or enjoined does not
seem  to be determined.  There is a court, however,
annexed to each cell, in which solitary labour may be
performed without much danger of communication between the prisoners.  This system  is simple, and has
few details beyond those I have mentioned in describing
it.  The advantages expected front it are described in
the report to which I have referred. Reformation, it is
hoped, will be produced by the reflections inseparable
from solitude, and the severity of the punishment is well
described in the report, as one that will almost make the
patient " the victim of despairc," while he is "shut up in
a cell'for weeks and months and years alone, to be deprived of all converse — while he counts the tedious
hours as they pass, a prey to the corrodings of conscience
and the pangs of guilt:" and this, it is supposed, will
effectually deter the convict from  repeating his crime,
and make the vicious fly from a region " wvhere conviction
produces so tmuch minsery." As the severity of the punishment is increased, its duration is proposed to be diminished; which will produce a saving that the committee
believe will compensate for the loss incurred by the difference between solitary and social labour, if the former
should be allowed.  It is evident that here the contagion of evil associations is effectually prevented without
the degrading discipline of the New York plan; that
the security is more perfect, and at less expense; and,
if they should make such relaxation from the strictness
of solitude as to permit instruction and labour, that it is
liable to much fewer objections than the other. If, on
the contrary, the plan of the committee, in their understanding of what is meant by solitude, be carried strictly
into execution, without instruction, without labour, those
objections would be of the most serious nature. Their




THE CODE OF REFORMI AND PRISON DISCIPLINE.  525
force will be better understood when I show in what
points the plan I propose differs from those I have thus
reviewed.
I premise that no plan of jurisprudence, combining
the prevention of crime with the reformation of the
criminal, has ever yet been attempted on such a scale as
would embrace all the different stages and departments of
criminal procedure. The only experiment that has been
made, that which is called the penitentiary system, has
been applied solely to the substitution of imprisonment
for other more acute bodily suffering as a punishment
after conviction, in the expectation that it would not only
deter but reform; and the results, during the first years
of the trial, gave encouraging proof that, if conducted
on proper principles, it must have the most beneficial
effect. But the wretched economy that refused the
accommodations for separate confinement; the exercise
of the pardoning power, ill-advised in many instances, in
others resulting from a necessity created by that economy; and the neglect of moral instruction, co-operated
to arrest the course of this first great improvement;
and all the different state committees unite with that of
Pennsylvania in the declaration, that the great penitentiary system is no longer in operation. But this, even if
it had been fully tried, is but one part, though an inlportant one, of a reformatory code that deserves the
name. To be perfect in its object, such a system should
begin by prescribing a plan of public education, not confined to the elements of literature, but extended particularly to the duties of a citizen towards the state, and
of men towards each other in every relation in life, and
to those principles of religion which are equally acknowledged by all sects. It would only be repeating trite
maxims and acknowledged truths, were the necessity of
an early education to be enlarged upon; but it is its
operation, when extended to all classes of society, in
preventing offences, that is here considered; early youth
is the season in which the germs of cupidity are to be
eradicated:




'5 6          INTRODUCTORY REPOAT TO
Eradenda cupidinis
Pravi sunt elementa: et teneri nimlis
Alentes superioribus
Fornmandne studiis —It is there our legislation on this subject must begin,
if we wish that its foundation should be stable. A prejudice has been entertained against religious instruction
in public institutions, from a fear of their being made
the engines of proselytism to sectarian doctrines —a fear
well founded in countries where there is a dominant sect,
but utterly groundless here, where the only establishment is that of perfect equality, and where there would
be no practical difficulty in leaving to the parents and
pastors of every pupil the care of instructing him in the
particular dogmas of his church, at the same time that
the principles in which all concurred might be inculcated in the public school, not only as duties of morality
but of religion. It is astonishing how little use has
been made of this powerful, I might say, when properly
used, this oimnipotent engine, in promoting the temporal
concerns of society, as well as the most important welfare of the individuals who compose it. When it has
been called into action, it has been either in aid of temporal, often absolute power, or for the aggrandizement of
a particular church.  In our happy country no such
result need be feared; and if this important part of a
system for diminishing offences was within the compass
of my undertaking, I should offer the project of a statute
on this subject, that I think would secure the most
perfect equality of religious rights, while it added the
inestimable'advantages of religious sanction in the prevention of crime.  These advantages cannot be placed
in a stronger point of light than is done by a gentleman
to whose publications on this subject I have been in
debted for much information in fact, as well as instruction in argument.  "If," he says, "the infliction of
human punishment were as certain as their promulgation, crimes would be prevented altogether.  But, as it
is impossible for any government to institute such a




THE CODE OF REFORM AND PRISON DISCIPLINE.  527
system of laws as can detect and punish all offences, the
daring criminal perceives the imperfection, and, trusting
to his own precautions, and availing himself of time and
circumstances, flatters himself with the prospect of impunity. Not so with the denunciations of divine punishment; which, when duly impressed on the mind, possess
a sanction at which mere human authority can never
arrive, and bring with them  the certainty of detection
and certainty of punishment, which alone can, in all
cases and under all circumnistances, prevent the perpetration of crime.  If, then, we are once able to produce
upon the mind a thorough conviction of the existence of
one supreme, intelligent, superintending being, the creator
of all things, who sees through all his works, and perceives the deepest recesses of the human heart, and who.will rewtcard or _putnish every one accordi.ng to his deeds,
this will not only remedy the defects in mere human
institutions by providing that continual inspection, discovery, and punishment, which such institutions endeavour in vain to supply; but will correct innumerable
offences of every kind which they do not pretend to
punish, and which are wholly beyond their reach" (a).
Such a plan of general religious instruction, embracing
the doctrines common to all the Christian sects, and excluding all sectarian doctrine, is not mere theory. It
has been for years practised in the city of Boston, where
nearly 100,000 dollars are appropriated to the public
instruction of children of every denomination, and where
the fornms of religious instruction have been settled by
the pastors of the several sects on the principles I have
laid dow-n; and such success has attended this honourable and liberal experiment that, although the schools
have been in operation for more than ten years, and on
an average more than three thousand have been educated in them annually, not one of those educated there
have been even commiitted for a crimle (b).  And in New
(a) Roscoe. Additional Observations on Penal Jurisprudence.
(b) As far as the reporter is informed, the United States have given
the first example, in modern times, of provision for education, furnished




528'             INTRODUCTORY REPORT TO
York a similar effect has been observed.  Of the thousands educated in the public schools of that city, taken
generally from the poorest classes of society, but one, it
is asserted, has ever been convicted, and that for a trifling
offence (a).
I should apologize for drawing the attention of the
legislature to a subject that might seem foreign to the
plan which this report is intended to elucidate, if public
education were not found to be.one of the best means of
preventing crimes, and if the reflections here made did
not apply to the instruction which forms so large a part
of the prison discipline which I propose. Adverting,
then, only to this as to a subject connected with, but
not embraced by, the matter of this report, I proceed to
develope the system which, after the maturest reflection,
I have  submitted  for consideration.   Its  objects are
extensive and many, but are so closely connected, that
to strike out any one would destroy the unity that must
give it effect.   Instead of confining it, as  has been
hitherto done, to considering imprisonment and labour
as the means of punishing crimes already committed, I
draw  the attention  of the legislature to the means of
preventing them, by provisions bearing upon pauperism,
mendicity, idleness, and vagrancy, the great sources of
those offences which send the greatest numbers to our
prisons.
Political society owes perfect protection to all its
members  in  their persons, reputations  and property;
and it also owes necessary subsistence to those who
at the public expense to all the community. The early colonists of New
England set the example; the system is coeval with the first settlement
of Massachusetts, and has with the most enlightened spirit of legislation
been adopted by other states. The liberal arrangement with respect to
religious instruction is not confined to the period of ten years mentioned
in the text-it was made much earlier; but the fact of its operation in
preventing crime was derived from a gentleman (S. L. Knapp, Esq.) who
spoke from knowledge, acquired during that period, by a personal attention to the schools, and a close professional attendance in the courts.
(a) Letter from Thomas Eddy to the commissioners, 1825, containing
very judicious reflections on this subject.




THE CODE OF REFORM AND PRISON DISCIPLINE.  52 )
cannot procure it for themselves. Penal laws to suppress offences are the consequences of the first obligation,
those for the relief of pauperism of the second; these
two are closely connected, and when poverty is relieved,
and idleness punished whenever it assumes the garb
of necessity, and presses on the fund that is destined
for its relief, the property and persons of the more
fortunate classes will be found to have acquired a
security that, in the present state of things, cannot exist.
This truth has attracted the attention of most civilized
nations, but by always making the laws of pauperism a
distinct branch of legislation, never connecting it with
their penal jurisprudence, with which it has so intimate
a relation, it has been a source of more perplexity and
confusion, has given birth to more bad theory and ruinous
practice, than any other question in government. Many
of these difficulties, it is supposed, will be obviated by the
application of sound principles before the evil has become
so incorporated in the system as to make it difficult to
be eradicated.
In relation to this subject, society is formed of two
divisions; those who, by their industry or property, provide subsistence for themselves and their families, and
those who do not. The latter must of necessity draw
their support from the former, either by depredations on
property, which brings them within the purview of the
laws for punishing crimnes, or, under the reality or preA
tence of pauperism, by levying a tax on public or individual charity. It is to this last description that I now
draw the attention of the legislature.  They may be
divided into three classes:
Those who can labour and are willing to labour, but
who cannot find employment.
Those who can labour, but are idle from inclination,
not for want of employment.
Those who are unable to support themselves by their
labour, from infancy, old age, or infirmity of body or mind.
The first and last of these classes are to be relieved,
not only by force of the obligation before referred to, but
2 L




530           INTRODUCTORY REPORT TO
from a social duty not less imperative, because it is
founded on humane feelings, and is enforced by, perhaps,
the best precept of that religion which places charity in
the highest rank of the virtues it inculcates. This relief
must be given by providing means of employment for
the industrious, and gratuitous support for the helpless.
The middle class includes those who, under the name of
vagrants and able-bodied beggars, are placed in society
on the verge between vice and crime, vicious enough to
require inspection and restraint, not so palpably guilty as
to justify severer punishmlent: abounding in large cities,
they are the hot-beds, in which idleness and profligacy
are forced into crime, and are properly the object of
coercive justice, but they cannot become so without
adopting the means necessary to distinguish and separate
them from the innocently poor, and it is this necessity
which brings that class also within the scope of the
measures for preventing crimes. It was thought that a
good system should not only restrain the vicious, and
punish and reform the guilty, but, by relieving and
employing the poor, put an end to one of the strongest
inducements to commit offences.  For these reasons the
Code of Reform and Prison Discipline provides, that a
building shall be erected to be called the House of
Industry, with two distinct departments, one for voluntary,
the other for coerced labour; the first department is
intended as a place of employment for all those who are
capable of gaining, by their bodily exertions, a complete
or partial support; and for the few who are totally helpless.  Its character, as a HOUSE OF REFUGE, will be hereafter explained; the second department is designated as
a place in which vagrants and the able-bodied mendicants
shalllbe forced to labour for their support.
This establishment enters most essentially into the
plan I propose. Its different departments, under the
name of poorhouses, workhouses, and bridewells, are
known not only in England and the states which derive
their jurisprudence from  that country, but in different
parts of Europe, but they are there distinct institutions,




i'HE CODE OF ItEFOI{M AND PItISON DISCIPLINE.  331
and want that unity of plan from which it is thought
their principal utility will arise. This requires elucidation.
If the duty of supporting its members be once acknowledged to be one incumbent on society to the extent that
has been assumed, and if the classification I have made
is correct, the necessity becomes apparent of distinguishing in what degree the different applicants are entitled to
relief; but that system would be obviously imperfect that
was confined to making this distinction, and granting relief only to the one class without making any disposition
of the others.  Every applicant, if my premises be true,
must belong to one or the other of those classes; and the
same magistrate who hears his demand of support, or
before whom he is brought, on an accusation of illegally
obtaining it, is enabled at once to assign him his place.
Is he able and willing to work, but cannot obtain it?
Here is employment suited to his strength, to his age, his
capacity. Isheableto work, but idle, intemperate, orvicious?
His habits must be corrected by seclusion, sobriety, instruction and labour.  Is he utterly unable to provide for
his support? The great social duty of religion and
humanity must be performed.  One investigation on this
plan puts an end to the inquiry. Every one applying for
alms, or convicted of illegal idleness and vice, necessarily
belongs to one or the other class, and immediately
finds his place; he no longer remains a burthen on individuals, and society is at once relieved from vagrancy and
pauperism.  Instead of this simple process, the poor
laws are generally administered by agents whose duty is
confined to a selection of proper objects of charity, without
power to punish the impostor who preys on the fund provided for the poor and the helpless; and without any
means to enable the honest labourer or artisan to earn his
subsistence. This establishiment once made, on a proper
scale, the plan for supporting it faithfully executed, the
second degree in this scale of preventive justice will be
obtained. By the first, your rising generation will be
taught habits of industrious obedience to the law, a respect for religion, and a love of justice and moral duties.




532            INTRODUCTORY REPORT tO
By this, which is the second, those who have grown up
without these advantages, those who have not profited by
them, and the numerous class of adventurers from other
countries, will be arrested in the earliest stages of their
profligacy, and taught to be industrious before they become criminal.
I am not unaware that this plan is, in some points,
founded on principles that are much questioned by many
who have written on this part of social economy. Without making this report a vehicle for the full discussion of
those principles, it will be necessary briefly to state the
objections that have been made, with my reasons for not
yielding to their force.
The policy, and sometimes the obligation, of a public
provision for the poor, has been forcibly assailed in
England, and by men of high reputation here. The
argument is shortly this.  The duty to provide for the
poor is rather a moral than a civil obligation: it binds,
successively, relations, friends, wealthy individuals, and,
last of all, society, which can be called on to support those
only who are not provided for by individuals. But if this
obligation upon society be once acknowledged and acted
on, the individuals who stand in a nearer relation to the
pauper will at once disregard a duty which has only a
moral sanction, and the government will have the exclusive charge of the burthen. And this, according to
the argument, is not all: the certainty of an ultimate
support will lead to idleness, extravagant speculations,
imprudent marriages, and all the improvident acts that
naturally produce poverty; and, in time, the number of
paupers will be so great as to consume the resources of
the state, or, if quartered on smaller divisions of the
country, to reduce the individuals composing it nearly to
the state of those whom they are forced to relieve. And
the theory is supported by reference to England, where,
at times, every fifth man is a pauper, and the poor-rates
equal one-tenth (a) of the whole revenue of the kingdom.
(a) In the year 1821, the poor-rates were 7,325,6111.; the income,
72,811,8621.; the number of paupers, 2,493,423; and the whole population, 12,218,500.




THE CODE OF REFORM AND PRISON DISCIPLINE.  533
In a country with a population so great as to reduce
the full price of labour to a bare subsistence, and at the
same time employing that labour in the production of
articles for which the demand is uncertain, there is no
doubt, that, at times, a permanent provision for the poor
must be extremely burthensome on the community; and
in such a country, an establishment to provide labour for
all those whom the vicissitudes of trade should throw out
of employment, would be, perhaps, impracticable, and
certainly very difficult of execution. But besides its
inapplicability to a different state of society, the argument is founded on the false principle, that the moral
obligation of charity in individuals, whether related to the
pauper or not, is superior in degree, as well as prior in
the time of its exercise, to that social duty which every
nation owes to the individuals which compose it; which
duty is not only protection, but mutual support. That
society owes protection to all its members, is not denied.
But what is that protection? Certainly its chief object
is life; but whether life be assailed by the sword or by
famine, it is equally important for the individual, and for
the community too, that it should be preserved. There
are mutual obligations between society and the members
who compose it, which are not written covenants; they
result from the nature of the connexion, from the object
to be attained by the association, which is the protection
of life and property. But the preservation of life is the
first object, property is only a secondary one; and if a
contract is to be supposed, can it be imagined to be of a
nature that would impose on any one of the contracting
parties the loss of that which it was the chief end of the
contract to preserve; and that too for the preservation to
the others of a portion of that which was only the secondary object? In other words, can it be supposed that any
just contract could stipulate that one of the contracting
parties should die of hunger, in order that the others
might enjoy, without deductionfi, the whole of their property? The obligation, then, if derived from the only
source to which we can look for its conditions, includes




534            INTRODUCTORY REPORT TO
support as well as protection; and although this obligation may, by the operation of positive law, be justly
modified by imposing the burthen of support on relations
capable by their fortune of supporting it, yet, whenever
these means are either deficient, or have not been provided,
the duty returns in its full force upon the community.
That this duty is sometimes very onerous, cannot be
denied. A redundant population, by which I mean more
people than can be so employed as to earn their subsistence, is a cause of this evil, that can only be avoided
by emigration, when it is the result of a natural increase;
but generally it is the effect of false principles in political
economy; of that system which, by premiums and duties,
pampers one branch of industry into an unnatural growth,
and seduces so many to pursue it, that the market is soon
overstocked with the proceeds of their labour, and they
are then left to starve, or become the objects of public
charity. A temporary foreign demand may also have
the same effect; but, in that case, the commlunity, which
must have been enriched by the effects of that demand,
will be better able to bear the burthen, and ought not to
complain that it is forced to give occasional support to
the unfortunate instruments of its prosperity. But, in a
country where the ordinary price of labour is more than
sufficient for the maintenance of the poor, they can only
be a serious burthen in consequence of the want of true
principles, or a good system of enforcing them, and the
whole secret lies in the finding employment adapted to
every applicant for relief. The number of those who are
incapable in any degree of contributing by labour to their
own support, is very small; and it is evident that, when
none are idle, the cost to the state will be only equal to
the difference between the proceeds of such labour and
the expense of support; but the proceeds of ordinary
labour are supposed, by the state of society, to be more
than sufficient for maintenance; therefore, making all
proper deductions for forced labour, and the other disadvantages of public institutions, the proceeds of labour,
then, if they are properly conducted, will not fall so far




'rl1E CODE OF REFORM AND PRISON DISCIPLINE.  535
short of the expense as to create any fear of the ruinous
consequences which attend the increase of the poor-rates
in England.
At present, the duty of supporting needy relations is,
by the law as well of England as of the different united
states, confined to ascendants and descendants only. To
extend this obligation, so as to oblige collaterals within
the second, or perhaps the third degree, to contribute to
their support, would, it is thought, not only lessen the
burthen on the public, but prevent, by the advice and
interference of friends, those imprudent engagements,
which are the principal causes of poverty.  Should it
have this effect, it will lessen the weight of the objection
that a public provision for the poor will increase the
numbers, by rendering men adventurous in speculation,
improvident in marriage, and careless in the conduct of
their affairs. Most of the writers on this subject state
that this effect is produced by the poor laws of England;
but it would seem that the natural love of independence,
and the sense of degradation inseparable from a reliance
on public charity, would always prevent this provision
being calculated on as a desirable resource; and we might
rather conclude that the numbers who are reduced to
this extremity by extravagance, would have been equally
prodigal if no such provision had existed. However this
may be, in a country where the sense of shame is
deadened by misery and extensive companionship in its
degrading effects, and where support is afforded without
exacting its equivalent in labour, it is believed that
nothing of this nature need to be apprehended in one
where the natural repugnance to live on charity is
strengthened by the ease with which labour can procure
not only support, but competence and ease; and where
the relief that it is proposed to afford, can only be procured by bodily exertions proportioned to the ability of
the party. Such are the reasonings and facts on which I
have ventured to propose, as part of my plan, the house
of refuge and of industry. I deem it a most essential
part of the system.  As prevention, in the diseases of the




536           INTRODUCTORY REPORT TO
body, is less painful, less expensive, and more efficacious
than the most skilful cure; so, in the moral maladies of
society, to arrest the vicious before the profligacy assumes
the shape of crime; to take away from the poor the cause
or pretence of relieving themselves by fraud or by theft;
to reform them by education, and make their own industry
contribute to their support, although difficult and expensive; will be found more effectual in the suppression of
offences, and more economical, than the best organized
system of punishment. An offence perpetrated, incurs the
loss sustained by its commission, and frequently that of its
repetition added to the expense of its punishment. To prevent an offence requires only the previous expense of education and confinement.  These reasons have induced me to
suggest the plan of general education, and to combine with
the system I offer, establishments for the relief of paupers,
and the seclusion and instruction of the vicious and idle.
These institutions, although they may conveniently be
placed under the immediate direction of the same superintendent, are essentially different in their character: the
one is a prison, the other a place of refuge. The object
of one is instruction, of the other relief: education and
industry are ends common to both.  Therefore, the
regulations for the one prescribe strict seclusion and
coerced labour, while the confinement and classification
of the other is merely such as is necessary for the maintenance of order; and the only penalty for idleness is
discharge, with the certainty of being classed in the next
application for relief with those who are wilfully idle.
The great objection usually made to establishments of
this kind, is the expense. This, in a great measure, will
be obviated by a wise and prudent administration, by
which labour, suited to every degree of strength and
skill may be provided. In our country there are great
facilities for this: gardening, poultry yards, and the
different occupations of agriculture necessary for the
supply of a large city, offer employments of the most
healthful kind, and in which some occupation suited to
every individual may be found. Add to these, a brick




THE CODE OF REF'ORM AND PRISON DISCIPLINE.  537
or tile yard, a rope walk, chair making, all the manufactures of straw, cotton spinning, weaving, and other
manufactures, of which more particular mention will be
made when we speak of the penitentiary; and it will be
seen that, by proper management, means will be found
to employ all the tenants of this establishment, whether
in the seclusion of the house of industry, or the more
relaxed discipline of the house of refuge: few are so
weak and infirm as to contribute nothing towards their
support; and the great object will be that there shall be
no idleness that is not the effect of infirmity. By these
means, the actual expense will be much lessened; and the
comparative account, truly stated, between the cost of
suffering them to live in idleness, by contributions levied
upon private or public charity, or depredations upon property, and the expense of this establishment, will show a
balance greatly in its favour.
We are come to that part of the system of prison
discipline applicable to penal law, in that restricted sense
which confines it to the prosecution and punishment of
offences. In the project which I submit to the legislature, I begin with a part of the subject that has generally been most unaccountably, most injuriously neglected.
The danger of vicious association is universally acknowledged; its corrupting influence has been portrayed by
every figure that rhetoric could supply, and enforced by
the most energetic language of eloquence; but its deleterious effects seemed to be feared only after condemnation, and no efficient plan has hitherto been adopted, or,
as far as I am informed, proposed to any legislature, to
apply a corrective to it in the incipient stages of criminal
procedure. Yet here, emphatically, it is calculated more
widely to spread its infection. After condemnation there
can be no association but of the guilty with the guilty;
but in the preliminary imprisonment, guilt is associated
with innocence. The youth who is confined on suspicion
only, whose innocence at the time of his arrest is attested
by his subsequent acquittal, leaves the den where he
was imprisoned, with tainted morals, depraved habits,




538             INTRODUCTORY REPORT TO
passions excited to vengeance, and fit associates to aid
him  in pursuits that makes his second entrance to the
house of detention only a passage to the penitentiary,
or, in our present system, to the gallows. In our great
cities, where this reform is most necessary, it seems least
attended to. Vices the most disgusting, brutal intemperance, crime in its most hideous and appalling forms,
are there congregated, and form  a mass of corruption,
rendered more deleterious from the mixture of imported
depravity and native profligacy of which it is composed.
The bridewell of a large city is the place in which those
representatives of human nature, in its most degraded
shape, are assembled; brought into close contact, so that
no art of fraud, no means of depredation, no shift to
avoid detection, known to one, may be hid from the
other; where those who have escaped receive the applause due to their dexterity, and he who has suffered,
glories in the constancy with which he has endured his
punishment, and resisted the attempts to reform  him.
Here, he who can " commit the oldest crime the newest
sort of way," is hailed as a genius of superior order, and
having no interest to secure the exclusive use of the
discovery, he freely imparts it to his less instructed companions.   Thieves, and all the other offenders whose
crimes are committed upon property, here receive the
most useful instructions, not only for perfecting themselves in their vocation, but of the proper objects on
which it may be exercised; and the comparatively short
detention of a large majority gives them the means of
immediately practising the lessons they have received:
for it may be fairly calculated that, of those committed
for trial, three-fourths (a) escape conviction after being
detained just long enough to receive instruction in all
the mysteries of crime.  This view  of the danger of
increasing guilt, by communication between the guilty
(a) In New York, in the year 1822, there were committed to the
bridewell prison, on accusations for crimes and misdemeanors, 2361
persons. Of these, fewer than 541 were brought to trial, for that is
the whole number of persons tried, including those who were not com



TIlE CODE OF REFORM  AND PRISON DISCIPLINE.   539
in different degrees, has been often considered, and is in
a great degree applicable to the association of convicts
in a penitentiary, as well as in those prisons we are now
considering. But, when we add to it the serious consideration that innocence and youth are at all times
exposed to this contaminating influence; that laws which
mitted but bailed: of these 541, 180 were acquitted; which produces this
result 
Committed for trial,                                2361
Convicted,                                           361
Discharged or acquitted,                            2000
In 1823, were committed,                              1928
The whole number tried that year was 599, of whom 177
were acquitted, so that the number of those convicted
was                                             422
Total discharged or acquitted,                      1506
In 1824, committed,                                   1961
Tried 586, acquitted 169, convicted,                 417
Total discharged or acquitted,                      1544
In 1825, committed,                                   2168
Tried 547, acquitted 161, convicted,                 386
Total discharged or acquitted,                      1782
In 1826, there were committed, to the 20th November,    2046
Add in the same proportion for the rest of the year,  227
2273
Tried 662, acquitted 200, convicted,                 462
Total discharged or acquitted,                      1811
This is sufficient to show that, in every year in one of our cities, from
1500 to 2000 persons of both sexes, all of whom are legally presumed to
be innocent, and a large proportion must be really so, are annually forced,
by the operation of the laws, into the closest association with the most
abandoned of their species; they must eat, drink and sleep with them.
They have no retreat from the infectious atmosphere of their society;
and, after having been thus forced to enter the school of vice and criminality, the 2000 disciples are turned out to practise the lessons they have
learned! And this is the wise system of laws that needs no amendment!
This is the humane administration of them in a rich and enlightened city!




540           INTRODUCTORY REPORT TO
profess to preserve the morals and purity of the citizen,
are made the instruments of their destruction; what
expression can be too strong to mark our astonishment
at the apathy or indolence of legislators, who, knowing
the evils of the system, can suffer it to continue, or who
will not take the trouble to inform themselves on the
subject?  Indiscriminate confinement, preparatory to
the trial, has, in this report, hitherto been considered
only in its contaminating effects: and those effects are
sufficiently dreadful. But there is another view of its
consequences, its inevitable consequences, which not only
shocks the understanding, but lacerates the best feelings
of the heart.  The only discrimination made between
the white tenants of these places of confinement is that
of the sexes. The women are kept in a separate apartment, the men in as many others as the prison can
afford, but without any distinction between them. The
innocent stranger, unable to find security, is joint tenant
of the same chambers with three times convicted convicts; vagrants sunk in vice, and brutified by intoxication; perpetrators of every infamous crime, and even
with murderers taken in the fact. Women of innocence
and virtue are sometimes forced, by this unhallowed
administration of justice, into an association with all that
is disgusting in female vice; with vulgarity in its most
offensive form; with intemperance sunk to the lowest
depth of degradation; with everything that can be conceived most abhorrent to female delicacy and refinement.
This is no picture of the imagination: the reporter has
seen it. It is realized, in a greater or less degree, in all
the cities of the Atlantic states: and even legislators,
patriotic statesmen, and benevolent philanthropists, who
have for years been legislating, and reasoning, and devoting their time and talents to the application of solitary
imprisonment to the purposes of punishment after conviction, have never yet taken one efficient step to prevent
the demoralizing effects attending indiscriminate association before trial, or to rescue the innocent, not only from
the infection of such society, but from the punishment




THE CODE OF REFORM AND PRISON DISCIPLINE.  541
it inflicts. For, what greater punishment could be
devised for a man of education and morals, used to the
refinements of good society, than to shut him up night
and day, for weeks and months, in a room crowded with
the vilest of the vile, with men stained with every
crime 2 or to a woman, not sunk herself in vice, to
be associated with the most abandoned of her sex?
Yet such is the humanity, the justice of our boasted
jurisprudence!  We begin  by inflicting this moral
punishment on one presumed, by the first principle of
our law, to be innocent: we add to it the physical evil
of close confinement, without any of the conveniences of
life, for an unlimited period; and when, perhaps, his
morals are corrupted by the society which the justice of
his country has forced him to keep, and his health is
destroyed by the rigour of imprisonment, his innocence
is declared, and he is restored to society, either to prey
upon it by his crimes, or burthen it by his poverty.
What greater mloral or physical evil, it may be asked,
would have been inflicted on the guilty, than this which
the innocent is made to suffer? An eye-witness to more
than one of the scenes he has described, and which, he
repeats, are not exaggerated in the description, the
reporter was deeply impressed with the necessity of a
radical reform in the system of detention before trial, and
has embodied it in the code which he presents. Persons
whose liberty, for the good of society, must be restrained,
are either those upon whom imprisonment is imposed
merely for the purpose of securing their appearance when
the purposes of justice require it, or those upon whom it
is inflicted as a punishment.
The detention of those of the first description, to be
just, must not only be necessary, but must be attended
with no privation that is not absolutely required for the
end proposed, and for the preservation of order.
Each of these two divisions is composed of several
subordinate classes, for the government of which different rules are necessary. None are comprehended in
the first who are able to find a sufficient pledge that




542            INTRODUCTORY REPORT TO
their personal attendance will be given when it is called
for. The purposes of the projected code require that
those comprising this division should form three classes:
1. Persons whose testimony is necessary for the investigation of some important charge.
2. Those accused of misdemeanor.
3. Those charged with crime.
The first of these classes is separated from  the two
others by all evidently marked distinction.  Those who
compose it are not presumed to be guilty of any offence;
the temporary privation of their liberty is a necessary
sacrifice for the safety of society; it is taken on the
same principle that justifies the appropriation of private
property for public purposes, and it carries with it tle
same right of indemnity; which indemnity the code does
not fail to provide.
With respect to the two other classes, there is this
difference, that, in these, there is a presumption of guilt,
arising from an accusation on oath. The maxim, that
every man is presumed innocent before conviction, is,
like many other legal maxims, true only to a certain
extent. In its application, it can mean only that proof
mrust precede conviction, and that accusation alone is not
one of those presumptions which throws the burthen of
proof on the accused, and causes him to be believed guilty
unless he shows himself innocent.  But it is not true as
respects persons accused on oath in a legal form.  This
is sufficient to justify every measure for securing the
person, because it creates such a presumption of guilt as
raises a probability of an attempt to escape punishment,
and on the degree of this probability is founded the
distinction between the second and third classes; the
motive to attempt anll escape being greater in proportion
to the magnitude of the punishment.  For these reasons,
the code directs that prisoners of the first class, to whom
no offence is imputed, shall enjoy every alleviation of
their misfortune, not incompatible with the maintenance
of order, that their own means can procure.  The second
class being accused  of an  offence, punishable when




THE CODE OF REFORM AND PRISON DISCIPLINE.  543
proved, by a comparatively light penalty, neither the
temptation to escape, nor the evil consequences to society
should it be effected, are so great as to justify a rigour
of confinement equal to that which is necessary to secure
the third class, accused of crime.  These degrees are
distinctly marked in the code, but it carefully provides
that none of those comprehended in this division, shall
suffer any other inconveniences from their detention,
than those necessary to secure their personal appearance,
and to prevent the evil association, no less requisite, to
protect their own morals against the contagion of vice,
for this classification is essential to the other and no less
important design, which has been before stated in this
report, that of separating the persons composing the two
first classes from  any communication with those of the
third, and the individuals of this last fromn  any intercourse with each other. The presumption before alluded
to also justifies this measure.  It is one of protection,
from which the innocent have everything to gain, and
of which the guilty cannot complain: for it imposes
no unnecessary restraint, and takes from them  only the
power of corrupting and being further corrupted. The
danger of guilty associations; the duty of avoiding them
by a careful separation of the innocent from those who
labour under a presumption of guilt; of those accused
or convicted of offences, implying no great degree of
moral turpitude, from those who are presumed or known
to be guilty of crimes which evince depravity of mind
and manners; of the young from the old offender; are
considerations on which the Code of Prison Discipline
rests; and on the Code of Prison Discipline depends the
whole system  of penal law.  It is for this reason that
classification before trial has been provided for with the
same care that is required after conviction; and it has
been particularly urged in the report, from a conviction
that its importance in penal jurisprudence  has not
hitherto been properly appreciated. It is proposed, not
only that the place for this confinement shall be separate
from that in which it is inflicted as a punishment; but it




5544           iNTRODUCTORY REPORT TO
is called, not a prison, but a HOUSE OF DETENTION merely,
that the name may not carry with it any idea of infamous punishment. The marked distinction in the penal
code, between crimes and misdemeanors; the degree of
moral guilt in the former, with which the latter is, for the
most part, not infected; renders a correspondent difference
necessary in the plan and nature of the punishment
inflicted on them respectively.
After considering imprisonment as a necessary restraint
merely, the only just character which, before trial, it can
have, and showing the provisions in the Code of Prison
Discipline adapted to this end, it remains to be considered
in its double capacity, as a punishment and the means of
reform.
The nature, properties and efficacy, of imprisonment, as.
a means of punishment, have been so fully discussed in
the Introductory Report to the Code of Crimes and
Punishments, that no more will be said here than is necessary to elucidate its modifications and combinations with
the reformatory part of the plan.
Of imprisonment, the Code of Crimes and Punishments
directs four grades: simple imprisonment, simple imprisonment in close custody, imprisonment with labour,
and imprisonment in solitude,
The two first are applied to offences involving no great
degree of moral wrong, and therefore ought not to be
confounded with others, in which depravity is apparent.
Some loss of reputation, when the laws are just and imapartially administered, necessarily is incurred by the infliction of every punishment. But disgrace ought to be
attached to those only which are inflicted for crimes
implying moral depravity.  Hence the distinction which
the law has drawn, and which the Code of Prison Discipline must execute, between misdemeanors and crimes.
To mark this distinction, different places, as well as a
difference of treatment, are necessary.
It would be approximating these degrees of offence too
closely, to commit to the same prison the criminal and the
misdemeanant. A man of worth and integrity may be




TIHE CODE OF REFORMI AND PRISON DISCIPLINE.  545
guilty of breaking the provisions of mere positive law;
but it would be confounding all ideas of proportion in
punishment to conduct him to the same prison with the
thief or assassin. A department, therefore, in the house
of detention is designated for offenders of this description,
whether the sentence be simple confinement or imprisonment in close custody. The discipline applicable to them
is also necessarily different from that required in the
penitentiary: as no great moral guilt is implied in the
offences of which they have been guilty, and the detention
is limited to short periods, so the imprisonment is intended more for punishment than reformation.  In this,
as in all other places of confinement, under this system,
complete separation at night is strictly enforced; the
means of education and religious instruction are provided;
seclusion is graduated according to the sentence; good
wholesome food and comfortable lodging are provided at
the public expense; labour is permitted but never enforced; vicious associations precluded, but close confinement never resorted to but when directed by the judgment,
or rendered necessary to preserve the order of the prison.
The distinction between simple imprisonment and confinement in close custody, is sufficiently explained in the
Code of Crimes and Punishments; and the precise rules
laid down in the Code of Prison Discipline for the treatment of prisoners under these punishments is calculated
to prevent oppression, on the one hand, and on the other,
strictly to enforce the execution of the sentence. How
different in its very nature! How infinitely so in its
effects, is imprisonment, under these regulations, from the
same punishment as usually inflicted for slight offences!
The horrors of a bridewell have been faintly described,
yet it is to such that the misdemeanant under the present
system, in most of the states, is committed, to pass the
period of his confinement without labour or instruction;
and either in the congenial association with vulgarity and
vice to forget that he is in a place of punishment, or,
shrinking from their abhorred contact, to find the physical
evil of imprisonment increased beyond calculation by a
2 M




546            INTRODUCTORY REPORT TO
moral evil which is inflicted without being ordained by
the law: whereas, on the plan I propose, no greater evil
being suffered than precisely that directed by the sentence,
and nothing left to the discretion of turnkeys or keepers,
the judge is enabled, with a precision before impossible,
to apportion the punishment to the offence. Heretofore,
however slight the infraction of law that involved the
penalty of confinement, an indefinite evil of bad association
was necessarily annexed to it: and if a respectable man,
for an imprudent breach of the peace, or for intemperate
expression in court, should be committed to prison for a
few days, it depended on the accidental circumstance of
the numbers in the bridewell, and sometimes on the disposition of the keeper, or, what is worse, on the wealth of
the party, to determine whether he should pass those
days in a comfortable apartment, making merry with his
friends, or should drag them on in the society of felons.
Now, the magistrate will know the extent of the punishnent he awards.  Simple imprisonment is defined, its
privations, its indulgences, the penalties attending the
abuse of them; everything is accurately marked.  Within certain limits traced by the law, these indulgences may
be restricted or enlarged by the judge, not by the jailer;
according to the circumstances of the offence, not according to the caprice of a turnkey, or the capacity of the
prisoner to purchase his favour. And simple imprisonment, the lowest grade of corporal punishment, formerly
an engine of torture to some, to others a mockery of justice, to all the means of depraved and depraving associations, becomes, in the hands of a discreet judge, an elastic
instrument of coercion, that may be made to press on the
smallest transgressions, or expand to fit the highest misdemeanor to which it is applied.
Imprisonment in close custody is the next grade; and
here the same strict rules to limit the discretion of the
keeper, are applied. In all the provisions of this code the
great truth is never lost sight of, that every evil inflicted
beyond that which is necessarily included in the sentence,
is illegal, is cruel, is tyrannical, Hence the care in the




THE CODE OF REFORM AND PRISON DISCIPLINE.  547
codes that are submitted, first, to make the judge con.
fine himself in his sentence strictly within the limits of
the discretion that is given him, and to exercise that
discretion as much as possible by the application of the
general rules that are prescribed to guide his judgment;
and afterwards, when he has pronounced, to take away
all other discretion that might alleviate, increase, or in
any manner alter the punishment, except in the cases
specially provided for.  In the case of simple imprisonment in close custody these rules and exceptions, it is
thought, will be found to answer these ends.  This grade
of punishment is the last and highest of those inflicted
for misdemeanors; as it is intended by the Code of
Crimes and Punishments to approach the severity, but
not to be attended with the degradation, of penitentiary
confinement in solitude, so the Code of Prison Discipline,
to give effect to this distinction, has prescribed a treatment that should mark, both to the sufferer and to others,
that although the law punished his act as an offence, and
doomed him to a prison for punishment, and to solitude
and reflection for repentance, yet it does not confound his
offence with those which, by the general consent of the
civilized world, has been characterized as infamous. This
important distinction, fully discussed in the preliminary
report to the former Code is referred to here, only to mark
the reason of the different places assigned to these two
species of close custody, and to account for the different
discipline by which they are respectively regulated.
We come now to the beaten ground of penitentiary
discipline. The first remark necessary to explain the
nature of that system I have ventured to recommend is
this: that the penal code assigns this punishment to no
offences but such as suppose in the offender a depravity
and corruption of mind which requires the application of
reformatory discipline as well as punishment-they must
not be separated. And with the respect due to the great
writers who have devoted their talents to this interesting
subject, it may be permitted perhaps to suggest that
most of them err in considering the true end of penal laws




548            INTRODUCTORY REPORT TO
to be either punishment alone, or reformation alone.  A
good system must combine them: and the great excellence of the penitentiary plan is, that the process of
reformation cannot be carried on but by privations and
sufferings which, if they do not succeed so as to reform,
must necessarily deter from  a repetition of crime in as
great a degree as any other bodily infliction could. If
the reformation is complete, we have the double assurance arising from the moral restraint and the remembrance of the physical as well as mental suffering. As an
example to deter others, penitentiary imprisonment has
been considered to be defective in this, that here the real
is greater than the apparent suffering; whereas it ought to
be directly the reverse; the apparent should exceed the
real pain; because the object of deterring others would be
attained with as little injury as possible to the sufferers
-it being a principle that no more evil than is necessary
to produce that effect ought to be inflicted. The principle
is true when modified so as to require the real suffering
to be sufficient for deterring the criminal himself, and the
apparent not to be so great as to shock by a belief that
it is cruel or disproportioned to the offence: but is the
application of it to penitentiary imprisonment well made?
The prisoner is not, say those who use this argument,
always exposed to view, and, when he is seen, his appearance may not indicate the suffering which he undergoes.
The misery of a restraint for years, perhaps for life,
cannot show itself in the few moments of a casual visit;
he appears well fed, well clothed, and the labour which he
is seen to perform is moderate; there is nothing, therefore,
in the aspect of the man to show the wretchedness that
nlust be created by a whole life doomed to forced labour
and degrading subjection. In this reasoning, however,
we lose sight of two operations; the one going on in the
mind of the convict, the other in that of the man upon
whom his punishment is intended to be as an example;
both of which essentially lessen the force of this objection. By the first, the sufferer becomes by habit, if
not reconciled to his punishment, at least much better




THE CODE OF REFORM AND PRISON DISCIPLINE,  519
able to bear it.  Some "strange comfort" finds its way
into his cell, and illuminates it with a hope which, though
long deferred, does not always sadden the heart:
employment interrupts uneasy thoughts during the
day, and produces the total oblivion of them by sound
sleep at night; and the misery of confinement for life,
spread in equal proportions over each day, is so much less
in any particular time, that, in many cases, the apparent
is greater than the real suffering of the convict. On the
other hand, he who is tempted to offend, and may be
restrained by the fear of punishment, will add to that which
he knows to exist, but which he does not see, all those
horrors by which mystery always aggravates apprehended evils. Circumstances, too, may be superadded, to
strike the imagination and increase this effect, without
increasing the real suffering of the prisoner, while they
augment its apparent intensity.  Thus imprisonment even
tested by this rule, is far from being so inefficient an engine
of punishment, whether considered as the means of
deterring the offender himself or others, as the objection
supposes. And, even if we should discard the idea of
reformation, penitentiary imprisonment has advantages
which few other modes of punishment possess. It is
permanent; the prison is always seen; and even if we do
not visit its gloomy cells, the imagination will people
them with tenants of its own creation, more squalid in
appearance and hopeless and dejected in inind, than the
real culprits who inhabit them; these two will have
enough of suffering (discarding any but that authorized
by law), to leave a lasting impression, and to prevent if
any thing short of reformation can prevent, a repetition
of guilt. Whatever advantages penitentiary imprisonment, however, may possess as a punishment, it is certain
that all punishments, considered merely as such, have
failed "in preventing offences; and the severest have
always without exception, been found the least efficacious.
But, if punishment alone is inefficient, the reformation of
the offender, if it were possible to effect it without punishnlent, would be so in the same or a greater degree; the




550           INTRODUCTORY REPOT TO
reformation of one offender would have little effect on
his fellows, unless indeed as an additional inducement to
proceed: but to refute this argument is nugatory, because
no means of reformation have been proposed, or can well
be imagined, that can be applied without imprisonment
or other restraint; but imprisonment or restraint is an
evil to the sufferer, and all evil imposed in consequence
of crime is punishment; all reformatory discipline therefore is necessarily connected with punishment; and it
would, but for one consideration, be investigating the
truth of a theory inapplicable to the subject if found to be
true, were we to inquire whether reformation ought to be
the sole object of penitentiary discipline. The consideration which alone renders the inquiry proper, and at the
same time highly important, is this: that if reformation
of the offender be the only object, and the example of the
punishment is not to be considered, then the endeavour
in establishing a mode of discipline should be to render it
as light as possible, consistent with the end to be attained,
which, by the argument, is reformation alone; because
it is a true principle, that no greater evil ought ever to be
inflicted than is necessary to the end; and therefore, if
some legislator, a proselyte to this doctrine, should believe
that mild persuasion and indulgence were better instruments of reformation than coerced labour and restraint,
and should act on this belief, the example of the punishment to deter would be lost; and though one convict
might go out a real or a pretended saint, seven sinners
would pursue his track of profligacy, secure that, even if
detected, instead of punishment they would receive only
advice and indulgence.  The doctrine, therefore, that
reformation is the sole end of penitentiary punishment,
deserves to be examined. If it mean the reformation of
the culprit, and of all who might follow his example, as the
language used by one of its advocates (a) would perhaps
justify us in believing, the dispute is one only of words;
for if the punishment of one,.or the reformation of one,
(a) Roscoe.




THE CODE OF REFORM AND PRISON DISCIPLINE.  551
prevents the other from committing the crime, it must be
because he fears the evil of the reformatory discipline;
he is then deterred by the example; and we arrive by
different roads to the same point. But, more fairly considered, the argument is this: crime is an evil, punishment is an evil; to punish, therefore, is to multiply instead
of diminishing it, unless it will deter the offender as well
as others: but it is proved, by long experiment, that
punishment has failed in this effect: therefore it is useless. Again, experience has proved that severe are much
less efficacious than milder punishments; it is fair, then,
to believe that the more you diminish the severity of
your laws, the more efficacious will be their operation 
and by one consequence further, if crimes decrease in the
same ratio with the severity of penalties, that it is not
the penalty that deters; and if it does not deter, it is not
only useless but wrong, because we set out with the incontrovertible position that this is the only legitimate
object of punishment: if crimes have been diminished by
penitentiary imprisonment, then it could not have been
the punishment that operated, it must have been something else, and that something should be the great object
to keep in view-it is reformation.
A great error at the bottom of all this reasoning is
one already referred to, that reformation is considered
abstractly, without any consideration of the means by
which it is to be brought about, which is the evil or the
punishment of seclusion, and which is inseparable from
it: another not less striking is, that, supposing reformation effectually to prevent a repetition of the crime by
the offender, the reasoning gives us no means of discovering how this will operate to deter others, except
through the fear of the reformatory discipline, which,
being from its nature a punishment, is discarded by the
argument from having effect. The other fallacies are,
first, in placing crime and punishment as evils of the
same nature.  Crime is an evil operating on society;
punishment, in the just degree that will prevent or lessen
crime, so far from being an evil, is a good; its pain is




552           INTRODUCTORY REPORT TO
only felt by the delinquent: the immediate pain of the
crime may perhaps only affect the individual sufferer by
it, but the alarm it creates, the certainty that, unless
repressed, it will be repeated, spreads through the whole
community, and the uncertainty who will be its next
victim, makes it an evil to all. The error lies in taking
that for granted which is in dispute, that the dread of
punishment does not deter from  offences. And when
that comes to be proved, it is done by another fallacy;
there have always been punishments, and there have
always been and still are offences; if punishment would
prevent them, there would be none.  But my argument
is, not that punishment will totally prevent, but that it
will diminish crimes; and in order to prove that it has
not this effect, it would be necessary to show a state
of society in which there was neither punishment nor
crime. Besides, to convince us that punishment in its
nature can have no effect, it must be shown to have
failed when applied in its most perfect form. But no
one pretends that this experiment has been ever tried:
on the contrary, those who contend for its efficacy, when
properly applied, have demonstrated that, throughout
the world, it has, in all ages, been wofully deficient. No
one has yet gone so far as to draw the conclusion that,
because mild have generally been found more efficacious
than severe punishments, therefore no penalty ought
to be annexed to offences; and yet, if we assert that
reformation is the only object, this is the plain and
inevitable result; for then every pain, however small,
inflicted as a punishnment, would be a useless, and therefore an improper evil.
Imprisonment, therefore, is to be used, in the plan I
propose, to punish as well as to reform.  But to make
imprisonment, especially if coupled with labour, a proper
sanction, its details must be strictly defined by the law.
Any discretion left to the jailer as to the mode of ilflicting it, makes him, and not the judge, the arbiter of
the culprit's fate.  He may, without proper limits to
his authority, change the sentence of a few years' con



THE CODE OF REFORM AND PRISON DISCIPLINE.  553
finement into the same period of exquisite misery, followed by loss of health or of life; and he may do this
without incurring any penalty; for where a full discretion is given, there can be no penalty, except in extreme
cases, for its abuse. If he may, at his discretion, inflict
stripes for disobedience or want of respect; if, in the
language held from the bench in New York, it is his
duty, "by all the means in his power, to make the convicts feel the awful degradation and misery to which
their vicious courses had reduced them," and "that the
ordinary sympathies of our nature could not be extended
to them;" if this be permitted, or especially if inculcated as the duty of the keeper, imprisonment is the
worst of all punishments, because the most unequal. It
is, then, no more the wisdom of the law applied to the
case by the discretion of the judge that apportions the
punishment, but the caprice or passion of an individual
in the exercise of a fearful duty of forcing a convict to
feel the awful mtisery and degradation of his situation.
If labour be superadded as a punishment, the danger of
this discretion is greatly increased.  The same labour
may be misery and death to one, and no more than
wholesome exercise to another; and the greatest abuse
and oppression may be justified by enforcing a literal
execution of the sentence. The law, then, must, in every
particular that can be foreseen, regulate the conduct of
those to whose keeping the prisoner is to be committed;
and after every precaution that human prudence can
take, the carelessness, or passion, or pride of opinion in
the keeper, may greatly counteract the operation of a
good system, and his intelligence, firmness, humanity,
and strict attention, may correct some of the evils, and
supply some of the omissions, which even the best cannot
escape. For this reason the imlportance of this office is
inculcated in the text of the code; and the qualities
required for its exercise are pointed out as a guide to
the selecting power, and a lesson to him who is chosen,
that the one may not commit the fatal error of underrating the talenits necessary for the employnment, and




554           INTR'ODUCTORY REPORT TO
that the other may feel the dignity with which he is invested, as well as the responsibility imposed on him
by the law. This was tile more necessary in order to
counteract a prejudice against the employment of those
to whom the custody of prisons has been for many ages
confided. A well-founded prejudice, while the jailer was
only appointed to prevent the escape of the promiscuous
assemblage of vagrants of both sexes, consisting of unfortunate debtors, of innocent or guilty prisoners committed for trial, and of convicted felons awaiting an
ignominious death, who were placed in his custody;
while he had no moral duty to perform, and was the
mere Cerberus to guard the doors of a terrestrial Tartarus, such a prejudice was just and unavoidable; and
as one part of the duty of a jailer, to prevent escapes,
necessarily continues to be vested in the warden, the
enunciation in the code becomes proper, in order to
break the chain of ideas which might otherwise, from
that circumstance, assimilate the character of an office
calling for high talents, and honour and integrity, with
that of an employment, the natural tendency of which
was to make him who exercised it an extortioner and a
petty tyrant.
I return to the position, from which I may seem perhaps to have digressed, that the law should be so framed
as to restrict as much as possible the discretionary power
of the keeper; it must designate the punishment due to
the offence, either by an invariable rule, or by a discretion
left to the judge to make one within certain limits. The
judge must apply this rule, by declaring the punishment,
if it be fixed; by apportioning it to the degree of the
offence, if he have a discretion. The punishment once
ordered, that system is strangely defective which unnecessarily permits it to be aggravated or alleviated by
an inferior officer, at his will. It deserves a worse epithet
if it hold out temptations for him to do it; and the
strongest that could be used to express disapprobation
would be merited, if it is inculcated as a duty. But the
system of social forced labour makes this discretionary




1tE CODE OF REFOROM AND PRISON DISCIPLINE.  555
power unavoidable; for nothing, we are told, (and I
believe told truly,) nothing but the lash can preserve the
proper discipline in such an association. The punishment, then, necessary to execute the sentence of the law,
is on this plan, so far from being directed by the
sentence, one expressly prohibited by the law under
which that sentence is pronounced, and therefore ought
never to enter into any subordinate part of the system.
What could be more incongruous than to snatch the
scourge from the hands of justice to place it in those of
caprice; to declare it too severe, and degrading, and
demoralizing, and unequal, to be applied as a punishment for CRIME, at the sound discretion of the judge, and,
at the same time, direct that it shall be inflicted for
disobedience to a subaltern officer of a prison at his
pleasure? I could not, therefore; offer any plan of imprisonment that would make this absurdity necessary.
Other disadvantages which are inseparable from this
discipline, have been detailed when I described that of
the New York prisons, of which it forms so prominent a
feature. I discard it, therefore, being firmly convinced
that, as an instrument of punishment, it is not only defective and dangerous, but that it cannot be brought to
produce that reformation which is one of the essential
parts- of my plan. But social labour, whether general
or in classes (if those classes are at all numerous), cannot
be carried on without it, unless the security and order of
the prison be put at hazard. Social labour, therefore,
must be abandoned, or so modified, and admitted with
such precautions, as to render this anomaly unnecessary.
The manner in which this has been attempted, requires
some previous examination of the principles on which it
is founded.
We have, in former parts of this report, considered
the question, whether punishment, as an object distinct
from reformation, should not enter into the sanction of
penal laws; and were brought to the double conclusion,
that it was necessary, and that no reformation could be
produced without it. Imprisonment has been examined




iD55 6 ~INTRODUCTORY REPORT TO
as a means of inflicting punishment, and in this and in
the introductory report to the Code of Crimes and
Punishments, has been compared with other corporal
punishments, and been found to possess, in a greater
degree than any other, the essential properties to render
it effectual. Here we need only add, that there is no
other means by which a reformatory process (necessarily
requiring time and a succession of operations) can be
carried on; no labour, no instruction, without detention,
no reformation without employment, without instruction,
religious, moral, and literary.  It must be remembered
that we are now speaking of the prison discipline proper
for convicts, for men already corrupted; to whom, for
the most part, labour was necessary for support, and who
resorted to crinme in order to avoid it. Labour consists
of a number, of a succession of bodily exertions, always
painful when first endured, becoming tolerable only by
the habit of making them, and never voluntarily resorted
to but from  the hope of some enjoyment they are to
produce; these two causes combined give to an occupation, painful in itself, all the characteristics of a pleasurable pursuit.  Habit destroys the sense of bodily
pain; hope anticipates the reward it is to bring, identifies the enjoyment with the means of procuring it, and,
by a wise use of the faculties bestowed by our beneficent
Creator, labour becomes cheerful, and its pain a pleasure.
This might be further illustrated by investigating the
cause of pleasure resulting from  the chase, and other
laborious recreations, which are often voluntarily pursued
so far as to become toilsome and fatiguing in a degree
not frequently suffered by the severest labour. In these
pursuits, indeed, the exhilarating effects of fresh air, of
society, and a view of the beauties of nature, give a
present enjoyment that is not found in daily enlployment; but these would never induce us to go beyond
the point of agreeable exercise: they are pushed into
fatigue by the causes that have been stated, and by the
self-satisfaction arising from a consciousness of dexterity
and skill. The anticipation of the applause lie will re



THE CODE OF REFORM AND PRISON DISCIPLINE.  55 7
ceive, of the festivity, or the domestic comfort, that
awaits his return, is identified in the mind of the sportsman with the fatigue he undergoes, the pain of which
habit has already alleviated; so that the toils and the
pleasures of the chase have become terms that are nearly
synonymous.
The great painter of human passions has beautifully
delineated this association, in the picture of a young lover
toiling through a servile employment, with the hope of
being rewarded by the presence of his mistress, and referring the patience and even the pleasure with which Ihis
toil was endured to this very illustration:
There be some sports are painful; but their labour,
Delight in them sets off.
Whenever this association of ideas is broken, labour is
regarded as an evil unmitigated by any alleviating circuimstance; no habit will induce a continuance of it, and
it will never be resorted to but in momnents of pressing
distress, the idea of which then becomes incorporated
with it and embitters its pains.  Labour forced by stripes
must always produce this dreadful concatenation of ideas;
and whenever the coercion ceases, the natural aversion to
fatigue will combine with the remembrance of the evils
with which it was embittered, and make the culprit fly to
vice to forget, or to crime to avoid it.
If these reflections be well founded, employment should
be offered as an alleviation of punishment, not superadded
to aggravate it. Although labour is painful, yet the
separate exertions, of a succession of which it is composed,
are not so in themselves; it is their repetition only which
makes them irksome: there is an innate love of action in
human nature, which renders its restraint the principal
evil attending imprisonment: and involuntary idleness,
unbroken by any mental or bodily occupation, creates a
degree of suffering which, setting aside acute physical
pain, can only be aggravated by uninterrupted solitude.
Solitude without physical enlployment may be rendered
tolerable, if the mind can be diverted from its own reflections by receiving intellectual instruction from others,




558           INTRODUCTORY REPORT TO
or amusement from books: these, also, except so far as
concerns a future life, are indulgences withheld from the
convict by the tenor of his sentence.
Next to the privations of liberty and employment, and
perhaps superior in intensity to the last, is that of the
usual indulgence of the appetite for food and drink: to
inflict this, so far as to make the patient suffer by hunger
or thirst, would be at war with the first principles of this
system; it would be causing an evil, the degree of which
could never be measured so as to be directed by the
sentence; and if left to the discretion of an executive
officer, would cause a suffering not directed by the law or
the judge; and in most cases would change a sentence of
confinement into one carrying with it loss of health or life;
food, therefore, wholesome in quality, and in abundance
sufficient to satisfy the appetite and support life, but of the
plainest kind, without any variety to stimulate, or delicacy
to gratify the appetite, is allowed to the convict, but it is
all he is entitled to; and thus another privation is added
to those already enumerated, as concomitants of the
punishment directed by law. But this is not all: men
desire not only liberty, recreation, and the indulgence of
the appetite; but also a shelter and clothing, fitted to the
variations of the season: and in civilized life there are
certain refinements of indulgence in these articles, the
privation of which becomes a severe punishment, when
we are reduced to what is strictly necessary.  The action
of these natural inclinations, their restrictions and partial
indulgence, constitute the moving power of my system of
punishment and reformation.
Imprisonment, solitude, want of occupation, either for
the mind or body, coarse aliments, hard lodging, clothing
of the roughest kind, are the evils of which punishments
are composed; their duration, their intensity, their cumulation, are the means provided by the Code of Crimes
and Punishments, for adapting them to the different
offences; their alleviation in different degrees, are those
designated in the Code of Reform and Prison Discipline,
for producing reform.




THE CODE OF REFORM AND PRISON DISCIPLINE.  559
If the reasoning already employed be correct, no succession of involuntary acts to which adults may be coerced
is likely to produce permanent habits of reformation: they
must be the effect of the will, operated upon by the
judgment, producing a conviction that such acts are
beneficial; and experience must enforce this conviction, by
giving the actual enjoyment of some, and the certain
hope of other benefits, that are the result of these acts.
With evil habits it is different: for the most part they
are acquired by a repetition of acts procuring sensual
enjoyment; and the judgment has so little agency in
producing them, that it must be silenced or perverted
before the acts of indulgence are done or repeated. It
is for this reason that the work of reformation is more
difficult than that of perversion: the one requires intellectual power sufficient to prefer a distant and moral
good, to a present and physical enjoyment: the other
coincides with the natural propensity for present
enjoyment, reckless of what an uncertain futurity may
produce. And for this reason also it is that the work of
reformation is slower in its operation than that of corruption. A single instance in which distress has been
alleviated, or expected good has been realised by labour
or exertion, would have but a temporary effect; the
operation must be repeated, and be made always to produce
the same result, and the judgment must be thoroughly
convinced that this result is invariable, before it can
counteract in the will the natural preference of present
enjoyment to future good. But to produce this effect,
the mind must be improved by intellectual instruction; it
must be taught that there are other pleasures besides
those of sense; and religion must be brought to
bear its part on the work of amelioration. The deep
solitude of the prisoner's cell, the awful impression which
must be made on his mind, by contrasting the
fleeting enjoyment produced by his crime with the lasting
evil in which he is plunged by its consequences; the
privation of factitious excitements; with no companions
to applaud his perseverance in wrong; no means of




560              INTRODUCTORY REPORT TO
drowning reflection by intemperance; no acute or disproportioned pain to brace him up against real or fancied
oppression; the heart must necessarily be softened, and
the spirit subdued, and the mind prepared to receive
those great truths, which, under such circumstances, may
be inculcated to the highest advantage, more especially
when this, combined with literary instruction, is offered,
not as a part of the sentence, but as an alleviation of
its rigour.
The spring, then, which  sets in motion my  whole
machinery for producing reform, is this: that all the acts
which, by their succession, are to produce habits of good,
are to be performed voluntarily, and are offered as
alleviations of the severity of the sentence: the will must
act, or the repetition will produce no effect. But, to
operate on the inclination, sufficient inducements must be
held out to overcome the natural repugnance to labour;
and this brings me back to the detail of those modifications
of imprisonment, and its concomitant labour, which I offer
instead of the strict seclusion of the Pennsylvania (a), or
the severe discipline of the New York system.
To understand them, a clear idea must first be given
of the place of confinement.  It consists of an arched cell
for each prisoner, of small dimensions, but well ventilated,
and comfortably warmed, communicating with a small
court, surrounded with a high wall. The sentence of the
law is confinement to the cell, supported by wholesome
but coarse food, in sufficient quantity to satisfy hunger,
but without occupation, and with no other society than
the attendance of those officers who minister to the
physical wants of the prisoner, and to his religious instruction. Privation of employment is denounced as a
part of the punishment; and this circumstance alone
(a) Mr. Roberts Vaux, one of the commissioners for building the new
prison, a gentleman to whose instructive publications and conversation I
am indebted for much usefill information, has informed me that the plan
of strict seclusion which I have quoted has never received the sanction of
the legislature, and that there is a probability it will be so modified as
to admit labour and instruction.




THE CODE OF REFORM AND PRISON DISCIPLINE.  561
would, with most men, cause it to be considered as an
evil, and the experience of its effects will soon cause it to
be felt as such; of course it will be connected with the
idea of suffering; and occupation being denied, will, from
the propensity to wish for that from which we are expressly debarred, be estimated as a good, and desired with
an intensity proportioned to the strictness and length of
the privation. To strengthen this natural desire, other
inducements are offered. He who labours lessens the
expense of his support, he who works skilfully and diligently may more than repay it. The advantage of this
beneficial result must be felt by the prisoner as well as
the state: if the proceeds of his work should not be sufficient to cover his expenses, it yet produces for him a
better diet; and if persevered in, and accompanied with
good conduct, for certain probationary periods of six and
twelve months, during which he is permitted in the day
to leave his cell and pursue his solitary employment in
the court, he is indulged with the privilege of working,
and receiving instruction in a small class, not exceeding
ten; but, if he acquires such proficiency in his business
as to make the proceeds of his industry exceed the expense of his support, he is allowed the immediate enjoyment of a part, to be laid out in books, or such other
articles as he may desire. Those of food or drink are
excepted, in order to avoid irregularities that would
otherwise be unavoidable; and the residue of the surplus
is an accumulating fund to be paid to him on his discharge. To give the greater effect to these inducements,
they are not offered to the convict on his commitment to
the prison; first, he must know and feel the unmitigated
punishment; his own reflections must be his only companions for a preliminary period, during which he is
closely confined to his cell; he must live on the coarse
diet allowed to the unemployed prisoner; he must suffer
the tedium arising from want of society and of occupation,
and when he begins to feel that labour would be an indulgence, it is offered to him as such; it is not threatened
as an evil, nor urged upon his acceptance as an advantage
2N




562           INTRODUCTORY REPORT TO
to any but to himself; and when he is employed, no
stripes, no punishments whatever, are inflicted, for want
of diligence; if not properly used, the indulgence is withdrawn, and he returns to his solitude and other privations,
not to punish him for not labouring, but merely because
his conduct shows that he prefers that state to the enjoyment with which employment must always be associated
in his mind, in order to produce reformation. If it has
been shown that involuntary acts of employment will not
produce a lasting habit, then, if there be any such as will
not accept these alleviations of their imprisonment, upon
them the imprisonment must operate solely as a punishment. But experience shows that these exceptions will,
if any, be very few: for employment, even under the lash,
is in most cases preferred to solitude.
It is no unimportant part of this plan, that education
and intellectual improvement, as well as mere physical
enjoyments, are held out as inducements for the exercise
of industry, skill, and good conduct. These are to be
rewarded by the use of books combining entertainment
with instruction; the instruments, and other means, of
exercising the mind in science, or the hand in the delicate
operations of the fine arts, of developing talent or improving skill.  Such pursuits offer, perhaps, the most
efficient means of reformation; they operate by reconciling the convict to himself, which is the first and most
difficult point to be gained. The daily exercise of mental
powers, the consciousness of progress in useful knowledge,
must raise him in his own estimation; and this honest
pride, once set at work, will do more to change the conduct and purify the heart, than any external agency,
however constantly or skilfully applied.
Let it not be said that this is a theory too refined to be
adapted to depraved and degraded convicts. Convicts
are men. The most depraved and degraded are men:
their minds are moved by the same springs that give
activity to those of others; they avoid pain with the same
care, and pursue pleasure with the same avidity, that
actuate their fellow mortals.  It is the false direction




THE CODE OF REFORM AND PRISON DISCIPLINE.  563
only of these great motives that produces the criminal
actions which they prompt.  To turn them  into a
course that will promote the true happiness of the
individual, by making him cease to injure that of
society, should be the great object of penal jurisprudence. The error, it appears to me, lies in considering
them as beings of a nature so inferior as to be incapable
of elevation, and so bad as to make any amelioration impossible; but crime is the effect principally of intemperance, idleness, ignorance, vicious associations, irreligion
and poverty-not of any defective natural organization;
and the laws which permit the unrestrained and continual
exercise of these causes, are themselves the sources of
those excesses which legislators, to cover their. own inattention, or indolence, or ignorance, impiously and falsely
ascribe to the Supreme Being, as if He had created man
incapable of receiving the impressions of good. Let us
try the experiment, before we pronounce that even the
degraded convict cannot be reclaimed. It has never yet
been tried. Every plan hitherto offered, is manifestly
defective, because none has contemplated a complete
system, and partial remedies never can succeed. It would
be a presumption, of which the reporter's deep sense of
his own incapacity renders him incapable, were he to say,
that what he offers is a perfect system, or to think that
it will produce all the effects which might be expected
from a good one; but he may be permitted, perhaps, to
believe, that the principles on which it is founded are not
discordant; that it has a unity of design, and embraces a
greater combination of provisions, all tending to produce
the same result, than any that has yet been practised.
Whether those principles are correct, or the details proper
to enforce them, the superior wisdom of the legislature
must determine. But, to think that the best plan which
human sagacity could devise will produce reformation in
every case; that there will not be numerous exceptions
to its general effect, would be to indulge the visionary
belief of a moral panacea, applicable to all vices and all
crimes; and although this would be quackery in legisla



564           INTRODUCTORY REPORT TO
tion, as absurd as any that has appeared in medicine, yet,
to say that there are no general rules by which reformation of the mind may be produced, is as great and fatal
an error as to assert that there are in the healing art no
useful rules for preserving the general health and bodily
vigour of the patient.
A reference to the text of the code is all that is necessary for the details by which it has been endeavoured to
temper the rigour of solitary confinement, by useful
employment and instruction, as a favour, to be withdrawn
when neglected or abused; by the hope of enjoying
society after a probationary period; and by the immediate rewards of labour and skill, in procuring social
comforts. and other conveniences.  The indulgence of
society in labour and instruction, which is offered as the
greatest inducement to good conduct, has its value
enhanced by the delay and perseverance in industry,
which are prescribed as necessary to its attainment; and
when granted, the number in each class is so small as to
preclude the necessity of any severe discipline to maintain
order, which, it is supposed, may be preserved by the
precautions that are prescribed, by the fear of forfeiting the
privilege, and by the advance towards reformation, which
must be made before the indulgence is granted.
The average term of confinement may be assumed to
be from four to six years, for such crimes, affecting property, as are attended with no circumstances in their
commission to show greater depravity than the crime
itself supposes; of this time, six months must necessarily
be spent in solitude, with no alleviation but labour;
twelve more in the same confinement, unless a desire for
intellectual improvement (the evidence of the first step
towards reform), should have diversified it by intervals of
social instruction; and the remainder of the term, in
continuing those lessons, and in perfecting that dexterity
in mechanical employment which is best acquired in
society. A period thus passed, without any possibility
of corrupting associations, with the daily experience of
the actual enjoyments gained by diligence, hearing no




THE CODE OF REFORM AND PRISON DISCIPLINE.  565
precepts but those of religion, morality and science, and
those inculcated not in the harsh language of reproach,
but in the mild yet firm accents of advice, pronounced by
men who take an interest in the welfare of the convict;
and with the cheering prospect of regaining, by honest
industry, that good opinion of society, which no one ever
lost without regret: a period thus passed, it is confidently
believed, must efface bad impressions, must create lasting
habits of industry and virtuous pursuit, must discharge
the subject of this discipline from the prison a better, a
wiser, and a happier man than he entered. But these
happy effects will be counteracted; the care, labour and
expense of your reformatory discipline will have been
uselessly incurred; if you proselyte to virtue and industry
is to have the one exposed to the seduction of his former
associates, and the other rendered useless by the want of
means to exert it. It will be in vain that you have given
him the skill necessary for his support, if no one will
afford him an opportunity of using it; or that you have
made him an honest man, if all the world avoids him as
a villain; his relapse is certain, unavoidable, and his depravity will be the greater, from the experience that
reformation has been productive only of distrust, want,
and misery. "Seven evil spirits " will take possession of
the mind that has been "swept and garnished " by your
discipline, and "the last state of that man shall be worse
than the first." To avoid this result, so destructive of
the whole system, an asylum is provided in the House of
Refuge and Industry, (the other departments of which
have been already described). Here the discharged convict may find employment and subsistence, and receive
such wages as will enable him to remove from the scenes
of his past crimes, place him above temptation, confirm
him in his newly-acquired habits of industry, and cause
him safely to pass the dangerous and trying period
between the acquisition of his liberty and restoration to
the confidence of society. Independently of this resource,
the industrious convict receives, at his discharge, a proper
proportion of his surplus earnings; he receives friendly




566              INTRODUCTORY REPORT TO
advice as to his future pursuits, and a certificate (if he
has merited it) of such conduct as will entitle him to
confidence; the consequences of reconviction are solemnly
represented to him, and his conduct, if he remain in the
neighbourhood of the prison, is carefully watched, so that
if he return to habits of idleness and intemperance, his
career to crime may be stopped by a commitment to the
House of Industry as a vagrant. The cause, the temptation, or the excuse for relapse, being thus removed, it
is hoped that instances of return to vicious pursuits will
become more rare, and that many will become useful
members of society, who, under the present system,
either burthen it by their poverty, or prey upon it by
their crimes.  The House of Refuge is rendered  the
more necessary, because a man of prudence will no more
receive or employ a convict discharged from one of our
present penitentiaries, than he would shut up with his
flock a wild beast escaped from  its keepers: but the
reformatory plan, once fairly in operation, its principles
studied, developed, steadily adhered to, improved by the
light of experience, and its beneficial effects upon morals
perceived, the man who has undergone its purifying
operation will, in time, be no longer regarded with fear or
contempt, and society, by confiding in his reformation, will
permit him to be honest; the House of Refuge will
then become less necessary, and its expense, of course,
diminished (a).
Before I quit the consideration of this establishment,
it may be necessary to dispose of an objection sometimes
raised to it, as well as to the penitentiary: that the
(a) This theory is confirmed by experience in the House of Refilge at
New York. Although admission into that school is obtained only by
vagrancy on conviction; yet, such reliance is placed upon the reformatory
effect of the discipline, that the applications for apprentices of both sexes
are so numerous that they cannot be complied with. Nor is the confidence misplaced; a single instance only having been known in which
the employer was dissatisfied with the conduct of his apprentice. After
making all due allowance for the docility of children, the same effects
may reasonably be expected, in a great degree, upon adults, by a longer
and severer course of discipline.




THE CODE OF REFORM AND PRISON DISCIPLINE.  567
products of mechanical operations, which may be carried
on there, will be sold cheaper than they can be afforded
by the regular mechanic, who is burthened with the support of a family, with rent, taxes and other charges, and
thus injure the innocent, in order to find employment for
the guilty. This objection could only have weight if all
the convicts were employed in one business, and that in a
country where there is a greater supply of labour than
there is a demand for it; but here the very reverse of
this is the fact. Again, if all the convicts should be employed in a single occupation, it must be because there is
an excess of demand for that species of labour over the
supply; and while that continues, there can be no injury:
when that demand is reduced, the business will be
abandoned both within and without the prison. As
respects the public interest, there can be no doubt, for
the question reduces itself to this —whether the convicts
are to be maintained in idleness, or suffered to contribute
by labour to their own support?  And even as regards
particular classes of mechanics, the same reasoning which
would prevent their trade being carried on in prison,
would go to show that it ought to be limited without.
But the best answer to the objection is, that experience has
never realized any of the evils that have been apprehended.
Having passed through the different stages of confinement with the prisoner committed for a term; having
shown the hopes and fears, the occupation, instruction,
and discipline, by which he is to be punished and reformed; and, having unlocked the door of his cell, and
restored him to the world a renovated man; we must
return once more to the interior of the prison, to visit
those who have by their atrocity rendered it unsafe to
trust them in that society, the very existence of which
their crimes have put to hazard. They are those whose
offences are now punished with death.  Reformation
enters no farther into their treatment than as it concerns
them individually. Shut out for ever from civil society,
its laws provide no means for their future employment;
it is indifferent as to their habits, and solicitous only




568            INTRODUCTORY REPORT TO
that, for their own sake, they should make their peace
with heaven: for, in avoiding to punish with death, it
would not " kill the soul."
The confinement of this class is intended for two purposes only: first, by actual restraint, to secure society
against a repetition of the crime. Next, to deter others
from committing a similar one, by the severity of the
punishment. These two purposes are attained by absolute seclusion, under circumstances varied according to
the enormity of the offence.  These circumstances are
calculated to strike the imagination with horror for the
crime, without awaking any dangerous sympathy for the
sufferer.  A  gloomy cell; inscriptions recording the
nature of the crime and the intensity of the punishment;
so much of mystery as excites the imagination; real
suffering enough to deter when the veil is withdrawn, not
so much as to enlist the feelings of the community and
make them  arraign the cruelty of the law; perfect
security from escape; a gradation in the discipline to
show, by strong features, the different degrees of atrocity
of the crime; such are the characteristics of the punishments substituted for that of death, now inflicted for the
different species of capital homicide. These convicts are
considered, for many purposes, to be as much dead to
the world as if no commutation of their former punishment had been made; their property is divided anlong
their heirs; they are buried in their solitary cells, and
their epitaph is contained in the inscription that records
their crime, and the daily renewal of its punishment.
Their existence is preserved by the policy of the law,
for reasons which it has proclaimed; and, although they
are kept within the reach of the pardoning power, yet that
policy will be counteracted by any remission of the sentence, the case of acknowledged innocence alone excepted.
Those who are confined for life, for a repetition of
minor offences, are considered more in the light of incurables than atrocious offenders whose ferocious disposition makes perpetual restraint necessary for the peace
of society. Yet a very long and uninterrupted curative




THE CODE OF REFORM AND PRISON DISCIPLINE.   569
process may sometimes succeed in cases that were
deemed desperate, and the subjects of this observation
have, therefore, the same advantages of instruction and
employment offered to them, that are given to the other
convicts, in the hope that, by unequivocal evidence of
reformation, after a very long probatory period without
relapse, they may be discharged by the pardoning power.
It is highly important, however, that this should not be
lightly or frequently exercised. Few circumstances have
tended more directly to disappoint the friends of the
penitentiary system, than the counteractive operation of
this prerogative: parsimonious legislative provisions
have furnished an excuse for its exercise, to a degree
that renders every attempt to punish or reform by imprisonment equally abortive; and, if the unhappy facility of granting pardons be not checked, it is in vain to
hope that the best organized plan will produce any good
effect. Restraint will be suffered with impatience, instruction will be unheeded, labour neglected, and counsel
derided, while the mind is kept in the feverish state of
expectation, which the daily release of fellow convicts,
more guilty, perhaps, but better befriended, must produce on those who remain. In some states this abuse
has become so prevalent, that the culprit has not only
in his favour the chance of escaping detection, or, if
detected, the chance of acquittal, but, after conviction, it has become more probable that he will be discharged by pardon (a), than that his sentence will be
executed. With so many chances in his favour, the
felon continues his game without fear or scruple. The
prison loses its terrors as a place of punishment, and its
discipline becomes a mockery to those who remain,
cursing their ill fortune, and hoping that, in the next
lottery of pardons, they may gain the prize of discharge.
Before I passed from the penitentiary discipline to
(a) In five years, seven hundred and forty convicts were discharged by
pardon from the New York Prison, and only seventy-three by the expiration of their sentence, making the chance of impunity after conviction,
more than ten to one in favour of the convict.




570           INTRODUCTORY REPORT TO
another branch of my subject, it was necessary to advert
to this radical, and, unfortunately, in most of the states,
this constitutional evil, to which, of course, no other
remedy can be applied by the legislative, than the voice
of expostulation with the executive power. A very able
report on this subject, made by the direction of a society
for the prevention of pauperism in the city of New
York, in the year 1822, contains the opinions of the
most celebrated jurists and magistrates in every state in
the union, all of whom concur in stating frequent pardons to be the greatest obstacle that the penitentiary
system has to encounter. Out of it has arisen another
evil; soliciting pardons has, in some places, become a
business; men who disgrace an honourable profession,
hang about the doors of the prison, bargain with the
convict, to be paid, perhaps, out of the proceeds of his
crime; by importunity or false statements, procure the
signatures of respectable men to petitions, deceive the
executive power by false allegations of reformation, and
procure the pardon of the most hardened offenders; who
use their liberty only to commit new depredations, in
the hope of again being released; and, strange to tell,
this hope has been realized after a second and even a
third sentence. Out of sixteen committed for a second
offence to the New York penitentiary, in 1825, eleven
had been discharged by pardon, and of those committed
in the same year for a third offence, every one had been
previously twice pardoned. To arrest, if possible, the
progress of this abuse, which totally counteracts every
attempt to punish or reform, the text of the code is made
to express the wishes of the legislature, and a provision
is introduced, making the soliciting of pardons, for reward, a punishable offence.
One other institution remains to be described; one of
perhaps quite as much importance as any other in the
system. It is the School of Reform; designed for the
confinement, and discipline, and instruction of juvenile
offenders and young vagrants. Of all the establishments
suggested by the charity, and executed by the active and




THE CODE OF REFORM AND PRISON DISCIPLINE.  571
enlightened benevolence of modern times, none interests
more deeply the best feelings of the heart. Whether we
consider the evil avoided, or the positive good bestowed,
it is equally worthy of our admiration.
The provisions of law have heretofore denounced the
same punishment against the first offence of a child, that
they awarded to the veteran in guilt; the seducer to
crime, and the artless victim of his corruption, were confounded in the same penalty, and that penalty, until
lately, was here, and in the land from whence we derive
our jurisprudence still is-death. We have substituted
imprisonment; but our laws make no other distinction
between adults and children, than that contained in the
common law, by which all above a certain age, and that
a very tender one, are supposed to have sufficient discretion to know both the law and its penalty; and as to
those who have not attained that age, it is a matter of
inquiry to be determined by evidence, and an instance is
recorded, in which an infant of nine years was convicted
and executed for murder. For the minor offences, affecting property, indictments against children are frequent;
and humanity is equally shocked, whether they are convicted, or, by the lenity of the jury, discharged, to complete their education of infamy. In the penal code which
you have under consideration, some material changes are
introduced on this subject; an age is fixed, below which
guilt cannot be supposed, and the inquiry as to discretion
can only take place when the accused is above that age,
but below another, at which sufficient capacity may always
be presumed. It also contains other provisions, which
govern the case in which a child does the prohibited act,
in the presence, or under the influence'of a parent or
superior.  But, with all these modifications, nothing
materially good under this head would be effected, itf,
after conviction, the same discipline were indiscriminately
applied to children and adults.  The necessity of a
different course, whether for punishment, or education, or
reform, is so clearly pointed out by nature, that he must
be an inattentive observer of her laws, who does not per



572           INTRODUCTORY REPORT TO
ceive it; and it should be considered, that, when a child
of tender age commits an offence against the law of society,
he acts, for the most part, in obedience to one which with
him has a paramount force-that of nature-who has
given him strong desires to possess an ardent passion for
novelty, and a free spirit, that with difficulty submits to
restraint; while she has withheld that discretion which
alone can give a voluntary control over those passions.
For acts committed before this discretion is acquired, or
when, by the visitation of Providence, it is taken away,
it is unjust to punish, although the good of society requires that we should restrain. Paternal, or any other
authority that represents it, stands in the place of this
discretion, until it is conferred by instruction, experience,
and the natural expansion of the faculties.  To this
domestic lawgiver and judge, is confided, during this interval, the task of repressing all the faults of infancy;
and when they become hurtful to others, he, not the child
whom he ought to have restrained, is answerable; civilly,
if the injury were done without his connivance or permission; criminally, if it were. These are the dictates of
most laws, applicable to a period of infancy more or less
indefinite, according to different systems; but, after that
period, they all abandon these sound principles, and hold
the child personally accountable to the penal law, and if
he has shown dexterity in committing the crime, or used
shifts to avoid detection, it is, by the common law, counted
sufficient evidence of a consciousness of moral guilt, and
of a discretion that ought to have prevented the offence.
But they do not consider that the moral sense is, in childhood, produced by instruction only, and the force of
example, and that, with the children who are generally
the objects of criminal procedure, instruction has either
been totally wanting, or both that and example have been
of a nature to pervert, not form, a sense of right; so that,
if the want of discretion entitles to the protective power
of the law, it is due to the adolescence of children quite
as much as it is to their infancy. Either they have
parents who entirely neglect the task, or abuse the power




THE CODE OF REFORM AND PRISON DISCIPLINE.  573
given to them by nature, and confirmed by the laws of
society; without relations, they are thrown friendless and
unprotected into the most contaminating associations,
where morality, religion and temperance are spoken of
only to be derided, and the restraints of law are studied
only to be evaded. In either of these cases, these unfortunate victims to the vices of others, have a right to
demand that the community shall supply the place of
their natural protectors, and teach them the sanction of
the law before they are punished for its breach. In a
country governed by wise laws, faithfully executed, this
class of children would be very small; moral, religious
and literary education would be brought, in such a
country, within the reach of every individual, and he would
be forced to avail himself of these advantages; ours, in
this respect, is not yet such a country. We are rapidly
advancing towards this degree of perfection; but, until
we attain it, the defect in this part of our system increases
the obligation on the community to be a father to the
fatherless'; to snatch the innocent child from the hands of
depraved parents, and the orphan from the contamination
of vice and infamy; and, instead of harsh punishments,
inflicted for offences which its own neglect of duty has
occasioned, to remove their cause by the milder methods
of instruction and useful employment.
The place for the confinement of juvenile offenders,
for these reasons, is to be considered more as a school of
instruction than a prison for degrading punishment; a
school in which the vicious habits of the pupil require a
strict discipline, but still a school; into which he enters
a vicious boy, and from which he is to depart a virtuous
and industrious youth; where the involuntary vices and
crimes with which his early childhood was stained, are to
be eradicated, their very remembrance lost; and, in their
place, the lessons inculcated, and the examples given,
which would have guided him, had the duties of nature
and society been performed. From hence he begins his
career in life; and as it would be unjust to load him, on
his outset, with the opprobrium which would be insepa



574               INTRODUCTORY REPORT TO
rable from an association, in the same place of punishment,
with hardened offenders, it became necessary, as well from
this circumstance as from the different nature of the discipline, to separate this entirely, both by locality and
name, from the other prisons.
To argue the utility, or to descant on the humanity, of
this establishment, after demonstrating its justice, would
be a useless task. Every mind that has investigated the
causes and progress of crime, must acknowledge the one;
every benevolent heart must feel the other. And even
economy, cold, calculating economy, after stating the
account in dollars and cents, must confess that this is a
money-saving institution.   If it is wise to  prevent a
hundred atrocious crimes by removing the opprobrium
of a venial fault, and substituting instruction for punishment; if it is the highest species of humanity to relieve
from the misery of vice and the degradation of crime,
to extend the operation of charity to the mind, and to
snatch with its angel arm innocence from seduction; if
it be a saving to society to support an infant for a few
years at school, and thereby avoid the charge of the
depredations of a felon for the rest of his life (a), and
(a) There is hardly a child who will be condemned to it (the New
York House of Refuge), who, if left to the course which would bring
him to it, would not finally be supported by the state as a convict. The
evidence of this is, that a very large proportion who are now confined in
our state prisons, commenced their career in crimes when they were
children, in some of our large cities. One person in particular, who is
now confined in the prison at Auburn, was first convicted when he was
only ten years old, and has since been, at different times, twenty-eight
years a convict, supported by the state, at an expense of not less than
two thousand dollars.-Report of the New York Committee.
In the Arch street prison at Philadelphia there is now awaiting his
trial, for felony, a boy of eleven years of age, who already passed a year
in the penitentiary of New Jersey for horse stealing: during this period
the only lessons he received, were the details given by his fellow convicts of their exploits; some of which he repeated to us, with a satisfaction but ill repressed. I cannot avoid adding to this note an extract
from a report on the state of the French prisons made by Mi'. Deappert,
which strongly exemplifies the necessity of a complete separation of
juvenile from other offenders. " There were in the same room, at Douay,




THE CODE OF REFORM AND PRISON DISCIPLINE.   575
the expense of his future convictions and confinements;
then is the School of Reform-a wise, a humane, and an
economical institution.
I need not enlarge this report by the details for the
government of this school; they are minutely contained
in the code. One principle pervades the whole, which
has been sufficiently enlarged upon: that the offences of
children may be sufficiently corrected, both for the ends
of punishment and example, by education and employment. If this be wrong, the whole plan must be remodelled; but, in establishing it, I have been guided by
something better than the best reasoning. In the city
of New York there is an establishment of this kind,
which can never be visited but with unmixed emotions
of the highest intellectual pleasure. It now contains one
hundred and twenty-five boys and twenty-nine girls, for
the most part healthy, cheerful, intelligent, industrious,
orderly, and obedient; animated with the certain prospect of becoming useful members of society, who, but
for this establishment,' would still have been suffering
under the accumulated evils attendant on poverty, ignorance, and the lowest depravity, with no other futurity
before them  than the penitentiary or the gallows.  I
ought not to omit mentioning here, that the female
department is superintended by a visiting committee of
ladies, who, at regular and frequent periods, examine
the school, converse with the scholars, encourage the
several youths, who had been sentenced to imprisonment by the correctional tribunal, together with men of different ages, and also a man
condemned to death for murder: he requested to speak to me in private;
"I wait," said he, "the moment of execution; and since you are the first
person who has visited us, I wish to address you with confidence, and to
conceal nothing from you. I am guilty of the crime for which I have
been condemned; I have committed robbery and murder. From my
infancy my parents neglected me. I fell into bad company; my undoing
was completed in a prison; and I am now about to expiate all my faults.
Among the persons whom you see in this room there are some youths,
who, with pain I observe, are preparing themselves for the commission
of new crimes, as soon as their term of confinement expires. If you
could get them removed into a separate room, this, sir, would be the
greatest benefit that you could confer upon them."




576              INTRODUCTORY REPORT TO
diffident, reprove the disorderly, reward the industrious,
and inspire all with their own virtues. The code I submit invites a similar superintendence, from which the
highest advantages, such as nothing  but the benign
influence of female character can give, are expected.
The plan of indenting the scholars to useful trades has
been recommended from the practical effect that has been
observed at New York. It might at first be supposed,
that an aversion would be found to taking apprentices from
such a place; but experience has proved that the confidence inspired by the mode of education pursued is so
great, that applications are more numerous, for children
of both sexes, than the rules of the institution will permit them to supply. And, although twenty-eight boys
and fifteen girls have been indented, the most favourable
accounts have been received of their behaviour; two
having received what they thought ill usage from their
masters, left them, but returned to the school, and only
one has resumed his former bad habits. What renders
the reformation of these children the more extraordinary
is, that thirty of them had before been sentenced to the
penitentiary, from  one to five different times.  A  register is kept of the behaviour of the different boys, and
of as much of their previous history as can be discovered.   Extracts from  this  are  annually published,
and they  contain  a number of facts of the  most interesting kind, all proving the practical utility of the
plan. Some of these are selected from the last report of
the managers (a).
(a) W. H. O.-This boy's history exhibits one of the most striking
instances of juvenile depravity that we have on the records of this institution. He, at the early age of nine years, commenced his career of
stealing, and with the assistance of some, more hardened and older in
crime than himself, he continued it for three years, with the most undeviating success. Of his short life, two and a half years in three separate
terms, have been served in the penitentiary, besides having been several
times in Bridewell.. The associations he formed in those schools of vice,
instead of reclaiming him, served only to strengthen his vicious propensities, and, at his discharge from them, he recommenced his depredatory
acts with renewed skill; in short, with him stealing seemed to be an




'iHE CODE OF REFORM  AXND PRISON DISCIPLINE.   577
It will be observed  that, contrary to  the rules laid
down  for the penitentiary, personal castigation is permitted  in the school.   This exception  was introduced
because the infliction of that punishment in childhood is
not attended with the degradation which chasracterizes
it when applied to adults; because it is permitted to
instinctive principle. Thus he continued until the establishment of this
institution. He fortunately became one its first inmates. Upon his
introduction he evinced a settled determination to escape (in which he
succeeded several times). The most rigid treatment was for a long time
successfully applied. At length he began gradually to yield to the restraints, and submit to the regulations required of him; from January
to December 1826, he so far improved that we considered him one of the
most amiable boys in the house; the person who contracted for his
services, said, that his attention to his work was such as to afford hint
much pleasure; that he was entirely obedient, agreeable, and active in
the discharge of his duties. Conceiving that the object of the institution,
in the effect of his reformation, was completed, and that a better state of
mind could not be effected in William, he was indentured to a highly
respectable mechanic, living in Connecticut. Some time previous to his
indenture, he was asked whether he would ever redarken his character
by the commission of crime, if selected to be bound out; his reply was,
that he was then influenced by the wicked one, but that he now felt his
mind to be in a different channel; and if a modest and humble deportment for several months, together with a knowledge of his frequently
practising devotional exercise, are proper criterions by which to judge, we
feel perfectly safe in saying that William was truly an altered boy. Since
his indenture, a very favourable report has been received from him.
S. T.-Aged sixteen years, born in Patterson, N. J.; he lost his father
and mnother when quite young, after which he was left to the care of
guardians, who neglected him. He in a short time acquired a degree of
celebrity among his companions, by his skill in stealing old rope, iron,
copper, &c. from around the docks. Is career, however, was made short
by the superintending care of the city authority, by whom he was committed to the alms-louse, as a vagrant. Ha twice escaped from that
institution, and when retaken the second time, he was sent here. Soon
after his commitment it became evident that the discipline of the house
was all that was requisite to make him obedient. After conducting
himself to the entire satisfaction of the superintendent, he was indented
to a farmer in the country. Since his indenture, we have been informed
by the gentleman with whom he lives, that " he is industrious, attentive
and kind; and such is the state of his mind, as relates to religion and
morality, that he will reprove his men for using profane language, in a
prompt, though modest and becoming manner, often referring to the
precepts he received from his recent friends."
20




578                INTRODUCTORY REPORT TO
teachers, with respect to their scholars; to masters, as
respects apprentices; and because the rules laid  down
for regulating the punishment are such as will effectually
prevent its abuse.  Yet; if experience should prove, as I
think it will, that, even in these cases, it may be dispensed with, it ought to be abolished. But, while this
power is granted by law to the master over the scholar
D. B. L. —Aged fifteen years, born in New York, committed from the
police, on suspicion of having stolen a shawl. He was brought up in the
vicinity of Bancker street, and for some months played the tambourine
in those receptacles of vice and misery, the dancing-houses of Corlears
Hook. He acknowledges having stolen some few articles, but denies
stealing the article for which he was sent here. From the time he was
committed until his discharge he conducted himself in an entirely satisfactory manner. In October he was indentured to a respectable gentleman residing about sixty miles north of this city.
L, S.-Aged about sixteen years, born in Ireland; his parents emigrated to this country about eight years ago.  His father has since died.
His education was entirely neglected by his parents. and the choice of
his companions left exclusively to himself. He has worked at several
mechanical branches of business, to none of which his restless disposition could attach itself. He was committed to the Refuge in March,
1825, from the police office, for stealing a copper kettle, for which he had
been confined in Bridewell eight days, where he had been four times
before, The character of a notorious thief cannot with justice be attached
to this boy, though he had been a habitual pilferer for several years.
Upon his entry into the house, he gave no evidence of a disposition
palpably wicked, yet he was a source of much trouble to the superintendent; in mischief he was almost invariably first; to the rules and regulations of the house he was perfectly indifferent, and in one instance he
absconded.  After a few days he was returned, severely punished, and
put in irons for forty-three days, when his irons were taken off. In
December his improvement was so great that he was promoted to the
situation of night watch, and day guard, the duties of which he faithfully
performed until July 1826, when he requested to be sent to sea; his
request was complied with, and he was indentured to a highly respectable
shipowner of this city.  After an absence of three months, he returned
to the Refuge on a visit, stated that he was perfectly contented with his
situation, and that he had often reflected while at sea, that, instead of
enjoying the blessings of liberty, he might have now been in the state
prison, had it not been for the establishment of a IHouse of Refuge.
D. S. —Aged fifteen years, born in New York; his father died while
he was yet an infant; his mother since married an oysterman, now living
in the vicinity of Bancker street. David has lived with three different
persons, who kept oyster-cellars j after leaving them, he returned to his




THE CODE OF REFORM  AND PRISON DISCIPLINE.   579
or apprentice, it would not be prudent to deny it to the
warden, who acts in this capacity towards the children
under his care.
There is also another difference that will be remarked,
in comparing this institution with the penitentiary. Here
public worship is directed, while, in the penitentiary, no
provision is made for its performance. Tile advantage
to be derived front an habitual attendance on this duty
is so great, that it ought not lightly to be given up;
but, after the best reflection I could give to the subject,
mother. He commenced his thefts by stealing wood from about the
docks; has also been in the habit of stealing old junk, copper, &c. He
has been three several times committed to Bridewell, the last time for
stealing a copper kettle, in company with the foregoing boy; it was for
this offence that he was committed to the Refuge. He was at first very
refractory, constantly plotting how to escape, and endeavouring to persuade others to accompany him.  He was for some months treated with
much strictness; from June 1825 to February 1826, his conduct was
entirely satisfactory; at this time an opportunity offering to give him an
advantageous situation, it was deemed incompatible with the object of
the institution to detain him longer.  He was consequently indented to
a gentleman residing in the western part of this state, who, in a letter
directed to his mother, two months after the date of his identure, says he
has much reason to be pleased with David's conduct.
J. D. S.-Aged eleven and a half years, born in New York. This
child, notwithstanding his extreme youth, has committed many errors.
He was first led to the perpetration of crime by the persuasion of one older
than himself, in whose company he stole many articles; he was once in
Bridewell for stealing, and was frequently punished by his parents, but to
no effect. He was committed here, at the solicitation of his father, in
April 1825. He conducted himself with uniform propriety until October
1826, when he was returned to his parents for the purpose of indenturing
to a gentleman who was instrumental in his reformation, and who was
well acquainted with his disposition. Here is another instance in which
the preservation of a child from ruin may be attributed to the establishment of a House of Refuge. Had this boy's thieving practices beeh
permitted to degenerate into a habit, they doubtless would have procured
for him a residence in our state prison or penitentiary, where the object
is punishment, and not reformation; he must have been thrown in the
company of old and hardened offenders, the contaminating influence of
whose conversation would eventually have banished every virtuous and
generous sentiment from his tender bosom. What reflecting mind but
must admit the utility of such an institution, and what generous soul but
would contribute to its support?




580            INTRODUCTORY REPORT TO
I determined that it might safely be allowed in the
school, but could not, without danger, be permitted in
the penitentiary. The discipline necessary to preserve
order in the workshops, and during the hours of instruction, will be sufficient for the same purpose, in the
chapel, during divine service. In the habit of seeing
and conversing with each other during the week, the
association in the church, on Sunday, will not be made,
by the children, the means of communicating plans for
escape, or other unlawful combination. But, in a penitentiary, instituted for solitary confinement, the meeting
of all the convicts on Sunday would be entirely inconsistent with the first principles of the plan; order could
not be preserved without recourse being had to corporal
chastisement; the convicts would anticipate the return
of their periodical re-union, not to listen to the truths of
religion, but to enjoy the society of which they had been
deprived; the utmost vigilance could not prevent communication by whispers or signs; they would become
acquainted with each other's faces, and be ready to
renew, after discharge, those associations which it is one
object of the plan to prevent; and it has been asserted,
and I believe with truth, that most of the combinations
for insurrection and escape have been formed in the
chapel.
In all these institutions, whether for restraint, punishment or education, so much must depend on the integrity,
attention and ability, of the warden, that not only are the
greatest care and judgment necessary in selecting him,
but the most watchful superintendence after he is chosen.
It may be stated as a general rule, to which, unhappily,
there are few exceptions, that, if neglect in the performance of official duties incurs no loss of emolument, they
will be neglected, unless the state of public opinion is
such as to Inake it an equivalent sanction; this last is a
powerful agent; but it cannot always be depended upon;
and it operates least upon those that are most in want of
a supervising power. A sensibility to public opinion is
connected, for the most part, with a moral sense that




THE CODE OF REFORM AND PRISON DISCIPLINE.  581[
would, of itself, enforce a performance of the duty; and a
lax morality is seldom attended with any great reverence
for the opinions of others.  But, in framing laws, we
cannot count on the constant operation of this high sense
of duty or regard to public approbation. They must be
made for men as they are; and unfortunately the disposition to gain as much as possible, with as little trouble as
possible, is that which we shall find most general, and
which, therefore, we must counteract, or direct to our
purpose, if we expect our institutions to be useful and
permanent.  A superintending power, therefore, has, in
most systems of law, been provided to secure the execution of official duty; this is easily done, and were the
remedy an effectual one, nothing could be more simple
than this branch of legislation; but what can assure us
that the supervisors will do their duty?
Custodes ipsos, quis custodiet?
In our legislation, we may create a system of successive
responsibilities and inspections; but a foundation must be
laid for the last.  We may place the weight on the
elephant, and support him by the tortoise, but here our
theory, with that of the Indian cosmogonist, ends.
Sound philosophy alone can, in both cases, direct us to
the great principles which effect the different ends, without this cumbrous and useless machinery.  Individual
interest draws all to a central point; a desire to promote the
public good, enforced by the fear of censure and the hope
of applause, gives an impetus in a different direction; and
these powers combined, will restrain aberrations from the
circle of official duty just as the order of the heavenly
bodies is preserved by the divergent operation of mutual
attraction and the projectile force.
Self-interest, then, must be so combined with the
public good, *as to make them inseparable; and public
inspection must be secured, to keep this great spring of
human action in its proper direction.  This has been
endeavoured in the plan of administration for the several
houses of confinement provided for by this system.




582           INTRODUCTORY REPORT TO
The whole are placed under the superintending care of
the same board, because, being parts of the same system, its
general principles could only be enforced by a common
head. The number of the institutions required an attention that a single person could not well perform; a board
of inspection, therefore, was created, and, considering
the nature of the duties, the number of five was fixed on
as that which would best unite the advantages of deliberation with the requisite despatch of business; and a distribution of the duties into classes, that some might be
performed by one member, making two necessary for
others, and a majority for those which were most important, was considered as a convenient and safe arrangement.
This board, in addition to its general superintending
power, has the direct management of all the pecuniary
concerns of the several prisons, but under regulations,
which it is thought must prevent the possibility of any
corrupt appropriation or negligent dilapidation of the
funds. Among other precautions, is one that ought, I
think, to be adopted in all cases of trust, whether arising
from office, or contract, or testamentary disposition; the
deposit of all monies held for another, or for the public
or any institution, in a safe public bank, in the name of
the trust, or of the person in his quality as officer or agent,
to be drawn out only by checks, expressing the purpose
to which the money is to be applied, and making it a
criminal breach of trust if the deposit is not made, or if
the funds are drawn for any other purpose than that of
the person or institution for whose use it was received.
The advantages of such an arrangement in commercial
agencies, and public and private trusts, need not be descanted on here: it is intended, in connexion with other
provisions prohibiting any kind of concern in purchases
or sales made for the prisons, any profit or convenience
from the employment of the prisoners, to take away all
temptation of making the office a pecuniary speculation,
and what is of as much consequence, perhaps, to prevent
its being thought one.
The board of inspection must be permanent; its duties




THE CODE OF REFORM AND PRISON DISCIPLINE.  583
are arduous; they require experience as well as diligence;
the undivided attention of the members must be given to
the subject; the close and unremitted labours required
by the important business entrusted to them, cannot be
expected to be gratuitously given. Few men, in our
state of society, can afford to divert the time required for
this purpose from their private affairs; and those who can
afford it, are not always the best fitted for the task.
They must, therefore, be paid, and so liberally paid, as to
command the talent and integrity required. Philanthropy,
public spirit, humanity or religion, may inspire individuals
to volunteer services; but it is a natural tendency of zeal
gradually to cool, when the service which excited it is
one requiring patient attention, a daily intercourse with
the most degraded of our species, and a close attention to
dull detail, more especially when it requires no exertion
of those talents that command public applause: besides
this, if the service is unpaid, its negligent performance
rarely incurs the penalty of public censure, which never
falls very heavily on those who have gratuitously given
any part of their time or attention to the business; whereas, the salary being an equivalent for the service, legal
punishment, as well as loss of reputation, will generally
attend neglect. The particular powers given to the board
of inspectors, need not be here detailed; they are, it is
thought, clearly designated in the text. As theirs is
chiefly a supervising power, and not so direct an agency
upon the prisoners as that of the other officers, it was not
deemed necessary to give them any interest in the labour
of the convicts; the number, too, of their members would
have rendered this extremely onerous to the institution
But with the warden it was different; to him  it was
deemed necessary to apply those principles I have endeavoured to establish, which make the interest of the
officer an'd of the public to coincide. The interest of the
public is, first, that all the regulations in the code, for
punishment and reformation, should be strictly observed;
secondly, that as much as possible of the expense of the
institution should be paid by the labour of the convicts,




584           INTRODUCTORY REPORT TO
To give the warden an interest in the first branch, he has
a premium on the decrease of reconvictions, the best mode
of testing the efficiency of the system.  To stimulate him
in promoting the industry and skill of the convicts, he
has a per-centage on the cgross amount of their labour;
while the superintendence of the inspectors, their periodical
examination of thle prisoners, and of the other officers, the
observation of the chaplain and physician, and of the
official visitors, will effectually prevent his urging that
labour by any other means, or in any greater degree, than
is prescribed by the code.  It is also a great object, that
by preserving the health of the prisoners, the punishment
should not be carried further than is directed by the
sentence; for this purpose, cleanliness, wholesome food,
exercise and proper relaxation from labour, are prescribed.
To enforce their execution, the proper system of inspection
is provided; and to combine private interest and the love
of distinction in the performance of this duty, honorary
and useful premiums are given for different grades of
decrease in the usual mortality of the prisons. These
rewards are extended to all the officers whose agency can
at all contribute to the end.
It may be necessary, before the conclusion of this
report, to give some idea of the number of officers, and
the duties of those which have not yet been mentioned.
The plan, as has been seen, comprehends,
A House of Detention, with two departments;
A Penitentiary;
A School of Reform;
A House of Refuge and Industry, with two departments.
All of these are under the general superintendence of
five inspectors; one warden and one matron will be
required for each institution.  One chaplain and one
physician will be sufficient for the four; a clerk for the
Penitentiary; one teacher for the School for Reform and
another for the Penitentiary. In the other institutions,
the detention is not long enough to require a regular
establishment for education, and one of the inmates will




TIlE CODE OF REFORM AND PRISON DISCIPLINE.  585
always be found competent for this purpose; so that,
independent of the underkeepers, the number of which
will depend, in some measure, on that of the prisoners,
the four institutions will require thirteen officers. The
manner in whichlthe prisoners are proposed to be confined,
will preclude the necessity of a military guard; and
unless the numbers shall multiply much beyond our
hopes and reasonable expectations, one underkeeper for
the House of Detentioif, one for the School of Reform,
two for the House of Industry, and six for the Penitentiary, ten only in all, will be required.  In this calculation, neither the inspectors nor their agent are included.
A regulation of much importance in the code may
need some explanation, which has not been given in its
place. Solitary confinement, although accompanied by
the permission to labour in an uncovered court, may, if the
labour be sedentary, be injurious to the health. To
counteract this effect, a machine is directed to be made
that will require strong muscular power to put in motion,
and at this, each of the male prisoners is directed to work,
but only for one hour in each day. This is made compulsory; but as the only penalty is solitary confinement
to the cell, and as it is considered and intended only as a
preservation to the health, this compulsion is not at war
with the principles before laid down on that subject.
The prisoners are to be brought to the machine separately
and it must be so contrived as not to permit them to see
or hear each other while at work.  Its effects will be not
only to preserve general health, but to fortify the muscular
powers, and fit the convict on his discharge for any
species of laborious employment.
The tread-mill, although a favourite engine of punishment in many institutions, finds no place in this, for the
following reasons: it cannot be employed without breaking in upon the system of solitary confinement, which is
the basis of the system; its injurious effects upon the
health are supported by strong testimony (a), and although
(a) Sir John Cox Hippeslie on the tread-mill.




586            INTRODUCTORY REPORT TO
there is a contrariety of evidence on the subject (b), yet
it may be fairly inferred from the whole, that it does not
fortify the constitution and prepare the convict for any of
the ordinary pursuits of laborious life, the principal muscular action being in the legs only. It teaches the convict nothing that can be useful to him on his discharge.
It is not a profitable employment of human power. If
it have any effect on the morals, it must be a bad one,
from  the associations inseparable from it, and from the
degradation which is considered to be attached to it. As
a punishment it must be unequal; to give it the velocity
necessary to punish one of a robust constitution, would
make it a torture to a weaker convict.
The Code of Reform and Prison Discipline, and the
reasoning in support of its provisions, are now before the
legislature; their wisdom will determine on the propriety
of its adoption.  Many parts of the plan have at different
times been proposed, and some of them have been partially
executed, but they have never before been consolidated
and presented as component parts of a whole system; a
characteristic which it is thought constitutes its chief
value: for it must be apparent, from the nature of the
subject, that, without a continuity of operation, as well as
uniformity of principle in the plan, no infliction of punishment or discipline for reformation can hlave any great effect.
In all legislation we must first form a clear idea of that
which we wish to accomplish, and then determine on the
best means of effecting it. These being well understood,
they must be explicitly enounced, not only for our own
guidance in forming the plan, but for that of our successors in correcting, of the judges in expounding, and of
our constituents in obeying it.  In that which I offer, this
great object has been constantly kept in view, and has
been repeated perhaps oftener than was necessary; and
the means proposed to effect it are such only as have been
recommended either by experience or the maturest reflec(a) Sixth Report of the Society for the Improvement of Prison Discipline, appendix.




THE CODE OF REFORM AND PRISON DISCIPLINE.  587
tion. But, as this object is the prevention of crime, it is
clear that this would be but imperfectly effected by any
discipline applied after conviction only. Conviction
supposes the prior existence of crime, and the discipline
that corrects it is punishment; but punishment is only one
of the means of attaining the end of preventing crimes:
to avoid their commission, therefore, we must go one step
further back; we must prevent contaminating association
before trial, more carefully than we would after it; we
must never confound innocence with unconvicted guilt,
by imposing any unnecessary restraint upon either. But
even accusation is most commonly founded on the evident
commission of an offence, although trial is necessary to
designate the offenders. We must begin, then, at an
earlier stage in our efforts to prevent it; we must relieve
that extreme want which is sometimes the cause, and
oftener the pretence for crime; and we must find employment for the idleness which generally produces it. And
when this is done, our work is not yet complete; religious,
moral, and scientific instruction must be not only provided
but enforced, in order to stamp on the minds of the people
that character, that public feeling, and those manners,
without which laws are but vain restraints.
The recapitulation of the several institutions embraced
by the Code of Reform and Prison Discipline, has been
made to show their close connexion, and that each part
is so necessary to carry into effect the great objects of the
system, that an omission of any one would, in a great
measure, defeat the good effect that might be expected
from the others.  If we mean to guard the community
from the inroads of crime, every avenue must be defended.
A besieged city, fortified on one side, leaving the others
open to hostile attacks, would be ajust image of a country
in which laws are made to eradicate offences by punishments only, while they invite them by neglect of education, by the toleration of mendicity, idleness, vagrancy,
and the corrupting associations of the accused before trial
as well as after conviction. Yet, such is the lamentable
state of criminal jurisprudence, that all nations are more




588           INTRODUCTORY REPORT TO
or less in this state. Here great severity is used to
punish offences, but no means are provided to prevent
them: there mild punishments and a reformatory discipline
are applied after judgment; but severe imprisonment
and contaminating associations are indiscriminately inflicted on the innocent and on the guilty before trial.
Between some states the contest seems which shall raise
the greatest revenue from the labour of the convicts: in
others the object is to degrade and make them feel their
misery. No where has a system been established consisting of a connected series of institutions founded on the
same principle of uniformity, directed to the same end;
no where is criminal jurisprudence treated as a science;
what goes by that name, consists of a collection of dissimilar, unconnected, sometimes conflicting expedients to
punish different offences as they happen to prevail; of
experiments directed by no principle, to try the effect
of different penalties; of permanent laws to repress
temporary evils; of discretionary power, sometimes with
the blindest confidence vested in the judge, and at others
with the most criminal negligence given to an officer of
executive justice. All these and other incongruities
would cease, were the lawgiver to form  correct principles; enounce them for his own guidance and that of his
successors; and, with them constantly before his eyes,
arrange his system of criminal jurisprudence into its
natural divisions, by providing for the poor, employing
the idle, educating the ignorant, defining offences and
designating their correspondent punishment, regulating
the mode of procedure for preventing crimes and prosecuting offenders, and giving precise rules for the government and discipline of prisons.
With such a system it may reasonably be expected,
not that offences will be eradicated, but that their recurrence will be much less friequent, and that the rare
spectacle will be witnessed of a retrograde movement in
vice and crime. But the desultory attempts which have
been made, and are daily making, to carry some of its
detached parts into execution, do but retard the progress




THE CODE OF REFORM AND PRISON DISCIPLINE.  589
and endanger the success of reform; they are troublesome,
they are expensive; the false reliance that is placed upon
them by their advocates excites high expectations, which
must be disappointed, because a disease pervading the
system cannot be cured by topical remedies; and the
disappointment produces despair of final success, an abandonment of the plan of reformation, and an inclination
to return to the old sanguinary system.
The code now submitted completes the System of
Penal Law, which is respectfully offered for consideration.
The task was undertaken with an unfeigned distrust of
my own powers, which nothing could have conquered but
the conviction that a simple enumeration and development of the principles on which the system is founded
would force a conviction of their truth.
It has been prosecuted with laborious and unremitted
application for several years, with a respectful attention
to the opinions of others, and a close observation of
practical results.
Its conclusion was attended with ttle gratifying
consciousness of having taken every precaution to guard
against the pride of opinion, and neglected no means that
could be suggested by the deepest sense of its importance,
and a religious desire that it might advance private
happiness, by establishing the true principles of public
justice.
It is now respectfully offered for consideration, in the
hope that after legislative wisdom shallhave supplied the
omissions, and corrected the errors of the work, it may
be made the basis of a system, by which instruction may
be promoted, idleness and vice repressed, crimes diminished, and the sum of human happiness increased.
EDWARID LIVINGSTON.
tND OF VOL. I.